Citation Nr: 20054112 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 16-35 611A DATE: August 14, 2020 ORDER A rating higher than 10 percent from January 1, 2011 to January 23, 2014 for residuals of a fracture of the left navicular/scaphoid bones, status post carpectomy with radial styloidectomy and traumatic arthritis (left wrist fracture) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Entitlement to a rating higher than 20 percent as of May 1, 2014 for residuals of a left wrist fracture is remanded. FINDINGS OF FACT 1. From January 1, 2011 to January 23, 2014, the Veteran’s residuals of a left wrist fracture were manifested by pain and limited range of motion, with dorsiflexion less than 15 degrees, and palmar flexion limited to 30 degrees. 2. The Veteran’s service-connected disabilities have not prevented him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent from January 1, 2011 to January 23, 2014 for residuals of a left wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5215. 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5110, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to October 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters in July 2019. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Left Wrist Fracture Residuals Disabilities of the wrist are rated based on limitation of motion of the wrist or ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes (DC’s) 5215 and 5214. The Veteran’s left wrist fracture residuals have been assigned a 10-percent rating from January 1, 2011 to January 23, 2014. Prior to that time, as relevant to the claim from which this appeal stems, a 100-percent was assigned under 38 C.F.R. § 4.30 based on surgery necessitating convalescence effective September 1, 2010. A 100-percent has also been assigned from January 24, 2014 through April 30, 2014 under section 4.30 based on surgery necessitating convalescence. A 20-percent rating has been assigned thereafter under DC 5010-5214. This decision concerns the period from January 1, 2011 to January 23, 2014. The issue of entitlement to a rating higher than 20 percent since May 1, 2014 is addressed in the REMAND section below. The Board notes that separate ratings for nerve damage and post-surgical scars associated with the Veteran’s left wrist disability have also been awarded. The Board denied a separate rating for traumatic arthritis of the left wrist in its July 2019 decision. Under DC 5215, a 10-percent rating is assigned for both the major (dominant) and minor (nondominant) extremity when dorsiflexion of the wrist is less than 15 degrees, or palmar flexion is limited in line with forearm. 38 C.F.R. § 4.71a. The April 2011 VA examination report reflects that, on range-of-motion testing, dorsiflexion of the left wrist was to 20 degrees, with pain beginning at 10 degrees. Palmar flexion was to 10 degrees, with pain beginning at 5 degrees. The Veteran did not have flare-ups. He did not have ankylosis. The March 2012 VA examination report reflects that, on range-of-motion testing, dorsiflexion of the left wrist was to 10 degrees, with pain beginning at 10 degrees. Palmar flexion was to 30 degrees, with pain beginning at 30 degrees, including after repetitive-use testing. The Veteran did not report flare-ups. He did not have ankylosis of the wrist. The December 2013 VA examination report reflects that on range-of-motion testing, dorsiflexion of the left wrist was to 45 degrees, with pain beginning at 35 degrees. Palmar flexion was to 40 degrees, with pain beginning at 40 degrees. The Veteran was unable to perform repetitive-use testing due to left wrist pain. While the report states that the Veteran denied flare-ups, he submitted a copy on which he wrote next to that section of the report that he experiences flare-ups all the time. The examiner indicated that he did not have ankylosis of the wrist. The Veteran’s left wrist fracture residuals have been assigned a 10-percent rating based on limitation of motion from January 1, 2011 to January 23, 2014. Accordingly, a higher rating based on limitation of motion is not available. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). With respect to the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These considerations thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As the Veteran’s left wrist disability has been assigned the maximum rating based on limitation of motion, a higher rating may not be assigned for additional functional loss during flare-ups or with repeated use of the wrist. See id. Because the Veteran did not have ankylosis of the left wrist from January 1, 2011 to January 23, 2014, as shown in the VA examination reports, the criteria under DC 5214, which pertains to ankylosis, do not apply. See 38 C.F.R. § 4.71a. In sum, a rating higher than 10 percent for limitation of motion of the left wrist is not available as a matter of law. TDIU A. Law Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must fully consider “the effect of combinations of disability” in its determination, “neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.1 (a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found unemployable due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). B. Analysis The Board finds that the criteria for TDIU are not satisfied, for the reasons discussed below. Excepting the periods for which a 100-percent rating has been assigned under 38 C.F.R. § 4.130, the Veteran’s service-connected disabilities did not meet the percentage requirements for schedular TDIU prior to October 22, 2014, as they had a combined evaluation of 50 percent or less. See 38 C.F.R. § 4.16(a). Since October 22, 2015, the percentage requirements for schedular TDIU have been met, as the Veteran’s service-connected disabilities have been assigned a combined evaluation of 80 percent. The Veteran himself has not claimed unemployability due to service-connected disabilities. In its July 2019 decision the Board found that the issue of entitlement to TDIU had been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Specifically, an April 2014 VA treatment record reflects that the Veteran reported losing his employment due to his wrist and hand disability. A March 2012 VA examination report reflects that the Veteran had lost his job as a cabinet maker and was working at a convenience store due to his left wrist disability. In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that the phrase “unable to secure and follow a substantially gainful occupation” in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component “simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.” 31 Vet. App. 58, 72-73 (2019). As for the “noneconomic component,” the Court held that this refers to the individual claimant’s “ability to secure or follow” an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran’s occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a “checklist that must be completely run through in every case,” and that any factor need only be discussed if the evidence raises it as an issue. Id. While the Veteran’s left wrist unfortunately has prevented him from working in his profession as a cabinet maker, he has not stated, and the record does not otherwise suggest, that it prevents him from obtaining or maintaining substantially gainful activity in other jobs, including when considering his occupational history, education, skill, and training. Significantly, pursuant to the Board’s remand directives, an August 2019 letter was sent to the Veteran requesting him to complete, sign, and return an enclosed VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). He was also requested to furnish, if possible, a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) completed by the employers identified in the VA Form 21-8940. The Veteran did not submit the forms or otherwise respond to the August 2019 letter. A VA Form 21-8940 provides relevant, and sometimes indispensable, information regarding a claimant’s employment and educational history, and concludes with a series of sworn certification statements endorsing the Veteran’s employment status and signaling his or her understanding that TDIU benefits are incompatible with substantially gainful work. The VA Form 21-4192 is used to obtain information from the Veteran’s former employer(s) regarding the circumstances of employment and the reasons for termination of employment. Both forms thus provide critical information and evidence to aid VA in making an informed decision on entitlement to TDIU. Moreover, the VA Form 21-8940 helps ensure that a claimant is on notice that a return to work while in receipt of TDIU benefits may result in an overpayment requiring repayment to VA. VA regulation provides, in pertinent part, that where evidence requested in connection with an original claim, a claim for increase or to reopen, or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. 38 C.F.R. § 3.158. Because the Veteran did not complete and return the VA Form 21-8940 within a year of the August 2019 letter, the issue is considered abandoned pursuant to section 3.158. The Board notes that in Rice, Court held that the issue of entitlement to TDIU is not a separate claim for benefits, but is an attempt to obtain an appropriate disability rating as “part and parcel” of a claim for an increased rating when the issue of unemployability due to the disability for which a higher rating is sought is reasonably raised by the claimant or the record. 22 Vet. App. at 453. The Board finds that this holding does not alter the applicability of the abandonment provisions under section 3.158 to the issue of entitlement to TDIU. In any event, the record does not show that the Veteran has been unable to obtain or maintain substantially gainful employment due to his left wrist disability. Consequently, the criteria for a TDIU are not satisfied. See 38 C.F.R. § 4.16(a). REASONS FOR REMAND Entitlement to a rating higher than 20 percent as of May 1, 2014 for residuals of a left wrist fracture is remanded. In the February 2020 VA examination report, the examiner indicated that the Veteran had extremely unfavorable ankylosis of the left wrist. However, the October 2015 VA examination report reflects a finding of favorable ankylosis in 20 degrees to 30 degrees dorsiflexion. The VA treatment records do not show findings of unfavorable ankylosis. Accordingly, the February 2020 VA examiner must be asked to clarify and explain the finding of “extremely unfavorable” ankylosis. If the examiner confirms that finding, the examiner should reconcile it with the October 2015 VA examination report and the Veteran’s January 2014 total fusion surgery. See 38 C.F.R. § 4.2. If that examiner is not available, the opinion may be provided by a different medical professional. The matter is REMANDED for the following action: Request the February 2020 VA examiner to clarify and explain the finding that the Veteran has “extremely unfavorable” ankylosis of the left wrist. If the examiner confirms the finding of unfavorable ankylosis, the examiner must reconcile it with the October 2015 VA examination report in which the examiner found favorable ankylosis in 20 degrees to 30 degrees dorsiflexion, and the fact that the Veteran underwent total wrist fusion surgery in January 2014. If an opinion cannot be obtained from the February 2020 examiner within a reasonable time frame, or the examiner is no longer available, the opinion may be provided by a different medical professional. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.