Citation Nr: 21003053 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-31 378A DATE: January 19, 2021 ORDER Entitlement to a 20 percent rating for hemorrhoids prior to March 19, 2018 is granted. Entitlement to a rating in excess of 20 percent for hemorrhoids is denied. Entitlement to a rating in excess of 20 percent for left scaphoid fracture, status-post ORIF, with residual superficial radial neuropathy, is denied. Entitlement to a rating in excess of 10 percent for nonunion fracture, left scaphoid with osteoarthritis, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran’s hemorrhoids have been manifested by persistent bleeding. 2. Throughout the appeals period, the Veteran’s service-connected left scaphoid nonunion fracture with osteoarthritis has been manifested by pain and limitation of motion but does not more nearly approximate ankylosis, including during flare-ups. 3. Throughout the appeals period, the Veteran’s service-connected left scaphoid fracture, status-post ORIF, with residual superficial radial neuropathy has been manifested by moderate incomplete paralysis. 4. The Veteran’s service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating for hemorrhoids for the appeals period prior to March 19, 2018 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.114, Diagnostic Code 7336. 2. The criteria for entitlement to a rating in excess of 20 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.114, Diagnostic Code 7336. 3. The criteria for entitlement to a rating in excess of 20 percent for left scaphoid fracture, status-post ORIF, with residual superficial radial neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8514. 4. The criteria for entitlement to a rating in excess of 10 percent for nonunion fracture, left scaphoid with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 U.S.C. §§ 4.3, 4.71a, Diagnostic Code 5215. 5. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to May 1987. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran provided testimony before the undersigned Veterans Law Judge at a Travel Board hearing. In March 2020, the Board remanded the case for the RO to issue a supplemental statement of the case (SSOC). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a 20 percent rating for hemorrhoids prior to March 19, 2018 2. Entitlement to a rating in excess of 20 percent for hemorrhoids The September 2012 rating decision on appeal granted service connection for hemorrhoids and assigned an initial noncompensable rating from December 15, 2010. The Veteran appealed the initial rating. A March 2018 rating decision increased the rating to 20 percent, from March 19, 2018. The Veteran’s service-connected hemorrhoids disability is rated under Diagnostic Code 7336. A noncompensable rating is warranted for mild or moderate external or internal hemorrhoids. A 10 percent rating is warranted where the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The current 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. That is the highest rating available under this Code. 38 C.F.R. § 4.114, Diagnostic Code 7336. The Veteran testified that he has experienced persistent bleeding from his hemorrhoids throughout the appeals period. In an August 2011 written statement, the Veteran reported that he was suffering from “chronic” bleeding associated with his hemorrhoids. Private treatment records dated in July 2011, August 2011, October 2011, April 2012, and May 2012 note complaints of rectal bleeding. Hemorrhoids were noted. A September 2013 treatment record noted that the Veteran had a “chronic appearing anal fissure.” Internal and external hemorrhoids were present. He was noted to have episodic rectal bleeding; during the past week he had bleeding for four days. A VA examination in July 2012 noted the Veteran’s current hemorrhoid complaints of rectal bleeding, swelling, and itching. The examiner noted internal and external hemorrhoids with rectal bleeding. On VA examination in June 2015, the Veteran reported recurrent rectal bleeding and pain. Visual examination showed rectal tags. On VA examination in March 2018, the Veteran reported daily episodes of rectal bleeding and pain. He used suppositories, pads, ointment, and Vaseline to treat his hemorrhoids. The examiner noted large or thrombotic hemorrhoids and persistent bleeding. On VA examination in January 2019, the Veteran reported he was still bleeding due to recurrent hemorrhoids. Resolving reasonable doubt in favor of the Veteran, the Board finds that the 20 percent rating for hemorrhoids is warranted for the entire appeals period. The evidence of record demonstrates that his level of disability for the entire period is more nearly approximates the criteria for the 20 percent rating as he has consistently reported persistent bleeding due to his hemorrhoid disability. Additionally, a chronic-appearing fissure was noted in September 2013. Thus, a 20 percent rating pursuant to Diagnostic Code 7336 is warranted for the entire appeals period. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7. This is the maximum schedular rating for hemorrhoids. 3. Entitlement to a rating in excess of 20 percent for left scaphoid fracture, status-post ORIF, with residual superficial radial neuropathy 4. Entitlement to a rating in excess of 10 percent for nonunion fracture, left scaphoid with osteoarthritis The Veteran contends that he is entitled to a higher rating for his service-connected left wrist disability. By way of background, the Board notes that the Veteran was originally granted service connection in a June 1987 rating decision for nonunion fracture of left scaphoid with osteoarthritis and carpal tunnel syndrome. An initial 20 percent rating was assigned under Diagnostic Code 8514. A July 1989 reduced the rating to 10 percent under 8515. The Veteran filed a claim for increase in October 2010. The September 2012 rating decision on appeal split the left wrist disability into two parts: Left wrist carpal tunnel syndrome, with a 20 percent rating assigned from October 1, 2010 under DC 8516; and nonunion fracture of left scaphoid with osteoarthritis, with a 10 percent rating from October 1, 2010 under DC 5215. A July 2015 rating decision recharacterized the neurological aspect of the left wrist disability as left scaphoid fracture, status-post ORIF, with residual superficial radial neuropathy, and noted that the 20 percent rating was assigned under DCs 8516-8514. As the Veteran has contended that he experiences problems with both the range of motion and neurological aspects of his left wrist disability, the Board finds that both ratings are before it. See generally, Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Diagnostic Code 5215 provides the rating criteria for limitation of motion of the wrist. A 10 percent disability rating is warranted where palmar flexion is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Ten percent is the maximum schedular rating based on limitation of motion of the wrist under this diagnostic code. A higher schedular rating is only warranted when there is evidence of ankylosis (frozen joint). 38 C.F.R. § 4.71a, Diagnostic Code 5214. Paralysis of the musculospiral/radial nerve is rated under 38 C.F.R. § 4.124a, DC 8514. Under DC 8514, mild incomplete paralysis warrants a 20 percent rating for either the major or minor limb; moderate, incomplete paralysis warrants a 20 percent rating for a minor limb and a 30 percent rating for a major limb; severe, incomplete paralysis warrants a 40 percent rating for a minor limb and a 50 percent rating for a major limb. As discussed below, the evidence shows that the Veteran has incomplete paralysis of the left radial nerve. The radial nerve, median nerve, ulnar nerve, if rated independently, can be evaluated under DC 8514, 8515, and 8516 respectively. However, 38 C.F.R. § 4.124a provides that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. See the note following DC 8719. In addition, VA regulations prohibit evaluation of the same disability or the same or overlapping symptomatology under different diagnostic codes (which is called “pyramiding”). 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). Assigning a separate rating under DC 8514, DC 8515 and DC 8516 constitute pyramiding as injuries to radial nerve, median nerve, and ulnar nerve all contribute to the same and overlapping functional impairment of the upper extremity consisting of pain, paresthesias and/or dysesthesias, numbness or sensory loss, etc. The Veteran is right-hand dominant; thus his left upper extremity is considered his minor extremity. See June 2015 VA examination report. On VA examination in November 2010, the Veteran described loss of left-hand strength, decreased grip, locking fingers, and limitation of motion of the joint. Examination showed there was no ankylosis of the left wrist. Motor function was within normal limits in the left upper extremity. Left sensory function for the median and ulnar nerves was decreased. Left upper extremity reflexes were normal. Tinel’s sign was present on the left, and Phalen’s test was positive on the left. There was neuralgia of the left medial and ulnar nerves. On VA nerves examination in June 2015, the examiner noted the left upper extremity had severe pain, severe paresthesias, and severe numbness. Muscle strength testing was normal and there was no muscle atrophy. Left upper extremity reflexes were normal. There was decreased sensation of the left hands/fingers. There was positive Tinel’s sign over the superficial radial nerve. The Veteran claimed normal sensation to pin prick and light touch over the palmar aspect of the fingers, including thumb, index and middle. He had marked paresthesia over the dorsal hand. He had normal strength to the thenar eminence and interosseous muscles on the hands. The examiner noted moderate incomplete paralysis of the radial nerve. There was no paralysis of the ulnar or median nerves. The Veteran used a left wrist brace. The examiner noted that: His main complaint is pain and tingling over the dorsal aspect of the thumb and radial dorsal hand. He claims normal sensation to the palmar thumb, index and middle fingers, but claims a greater than 2 cm two-point discrimination (these exam findings are not consistent with each other). The motor function of the median nerve (thenar eminence) and ulnar (interosseous) are normal and V/V. Tinel’s sign at the carpal does not produce pain and paresthesia over the median nerve (thumb index and middle fingers) but does over the superficial radial nerve. His scar over from his ORIF of the navicular fracture, is in the area of the superficial radial nerve. It is more likely than not that he has a superficial radial neuropathy as a result of the ORIF of his navicular fracture. On VA left wrist examination in May 2018, the Veteran reported flare-ups of the left wrist involving loss of grip, stiffness, difficulty making a fist or grip, and difficulty picking up heavy things. He reported that his left hand was smaller than his right. The Veteran also reported difficulty with holding, pulling, and carrying things with his left hand. Examination showed no ankylosis of the left wrist. There was no muscle atrophy. Muscle strength was 3/5 in the left wrist for flexion and extension. The examiner noted pain in the “left wrist scaphoid area, minimal tenderness related to condition.” On VA left wrist examination in January 2019, the Veteran reported flare-ups of left wrist involving aching, swelling, tenderness, and loss of grip. The Veteran described functional loss involving no heavy lifting, no overhead activity, no pulling, and short grip. Examination showed no ankylosis of the left wrist. There was no muscle atrophy. Muscle strength was 5/5 in the left wrist for flexion and extension. The examiner noted pain in the “left wrist scaphoid area, minimal tenderness related to condition.” Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s left nonunion fracture of the scaphoid with osteoarthritis at any point during the period on appeal. In order for a higher rating to be warranted, the evidence of record must demonstrate, at a minimum, favorable ankylosis in 20 degrees to 30 degrees dorsiflexion. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. A review of the record reveals no evidence of ankylosis of the left wrist. Thus, a rating in excess of 10 percent is not warranted. See 38 C.F.R. § 4.71a Diagnostic Codes 5214, 5215. Moreover, the Veteran is already in receipt of the maximum schedular rating under the applicable diagnostic code for limitation of motion; thus, VA regulations concerning functional loss are not applicable. See Johnston, 10 Vet. App. at 85. The evidence indicates that even during flare-ups the Veteran’s condition results in significantly reduced range of motion, but the Veteran still retains some ability to move his wrist. Accordingly, a higher rating based on additional functional loss is not warranted. As the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. §§ 4.3, 4.71a, DC 5215. Turning to the rating for left scaphoid fracture, status-post ORIF, with residual superficial radial neuropathy, a rating in excess of 20 percent is not warranted during the appeal period. Specifically, the Board finds that the evidence does not more nearly approximate “severe” incomplete paralysis of the radial nerve. The Board finds probative the assessment provided by the June 2015 examiner that the Veteran’s neuropathy of the radial nerve is moderate in severity. Further, the Board notes that muscle strength testing of the Veteran’s left wrist in 2015 and 2019 was normal during each evaluation, while the 2018 examination noted 3/5 muscle strength. Muscle atrophy of the wrist has not been reported by Veteran and was denied by the VA examiners. As the evidence does not support a finding of “severe” incomplete paralysis of the radial nerve, a rating in excess of 20 percent during the appeal period is denied. The June 2015 VA examiner noted moderate incomplete paralysis of the radial nerve, with no paralysis of the median or ulnar nerves. The November 2010 examiner also noted decreased sensation of the median and ulnar nerves, although motor function was normal in both. DCs 8514, 8515, and 8516 each consider functional impairment of the upper extremity primarily from the elbow through the wrist and fingers, consisting of pain, paresthesias and/or dysesthesias, numbness, sensory disturbance, loss of reflex, and atrophy. 38 C.F.R. § 4.124a, DCs 8511, 8512, 8514, 8515, 8516, 8517. And, as the Veteran’s reported symptoms in the hands and fingers can here only support the severity of one moderate evaluation, separate ratings assigned under these DCs violate the prohibition against pyramiding, or the rating of overlapping symptomatology under various diagnostic codes. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. 259, 262. The Board finds that a higher evaluation of 40 percent under DC 8515 or a higher evaluation of 30 percent under DC 8516 is not warranted. Wholly sensory impairment of the medial and ulnar nerves does not constitute “severe incomplete paralysis” and finding otherwise in the context of DC 8515 or 8516 would not be “equitable and just.” See 38 C.F.R. § 4.6. 5. Entitlement to TDIU A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38U.S.C. §1155; 38C.F.R. §§3.340, 3.341, 4.16(a). It is also the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation Service, 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 paragraph (a) of this section. 38 C.F.R. § 4.16 (b). The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is “whether the [V]eteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38C.F.R. §§3.341, 4.16, 4.19. The Veteran is service-connected for: left scaphoid fracture, status-post ORIF, with residual superficial radial neuropathy (rated at 20 percent); left nonunion fracture of the scaphoid with osteoarthritis (rated at 10 percent; hemorrhoids (rated 20 percent); and left wrist surgical scar (rated 10 percent). The Veteran has a combined rating of 50 percent from October 1, 2010. He does not meet the schedular criteria for a TDIU for the entire appeal period. The preponderance of the evidence does not show his service-connected disabilities alone render him unable to secure and follow a substantially gainful occupation. The Veteran’s VA Form 21-8940 reflects that he completed high school. He reported that he worked for the United States Postal Service as a mail carrier from 1988 to January 2016. The Veteran reported that the disabilities that prevent him for obtaining or securing a substantial occupation were “wrist screw-loss of grip, and bleeding hemorrhoids.” The Veteran testified before the undersigned that he took early retirement from the Postal Service due to multiple disabilities, including bleeding hemorrhoids; left wrist strength and grip problems; arthritis of the spine, shoulders and knees; Graves’ disease; high blood pressure; and high cholesterol. He testified that his service-connected left wrist disability made it difficult to carry mail in the left hand, and that he had pain and rectal bleeding when walking his mail route that sometimes required him to change his uniform. A VA examiner in November 2010 noted that the Veteran’s left wrist disability resulted in reduced hand sensation, limiting work with fine motor skills. A VA neurological examiner in June 2015 noted that the impact of the peripheral neuropathy on the Veteran’s ability to work was “he has difficulty lifting, repetitive work, gripping.” VA examiners in July 2012 and June 2015 indicated that the Veteran’s hemorrhoid condition did not impact his ability to work. A VA examiner in March 2018 noted that the Veteran’s hemorrhoids had caused him to miss zero to one week of work time in the past 12 months. The examiner noted that the Veteran “reports persistent pain with prolonged walking and sitting that places friction and pain in rectal area which made it difficult to withstand that persistent pain and irritation that would occur in rectal area if walking or sitting [greater than] one hour.” The May 2018 VA wrist examination noted difficulty of gripping, carrying, and lifting things in the left hand. The January 2019 examiner noted difficulty with full grip and lifting over head with the left upper extremity. A VA examiner in January 2019 indicated that the Veteran’s hemorrhoid condition did not impact his ability to work. Based on the available evidence, the Board finds a TDIU is not warranted. The Veteran testified that he took early retirement from the Postal Service in 2016 due to both service-connected and nonservice-connected disabilities. VA examiners have noted that the Veteran’s service-connected left wrist disability impacts his ability to work, causing difficulty with gripping, repetitive work, and lifting. The March 2018 VA examiner noted that hemorrhoids made it difficult to walk or sit for more than one hour, however the 2012, 2015, and 2019 examiners found that the Veteran’s hemorrhoid disability did not impact his ability to work. No VA examiner has opined that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities alone. The Board notes that while the evidence indicated that the Veteran’s left wrist and hemorrhoids disabilities impact his ability to perform certain physical functions, the evidence does not indicate that the Veteran is unable to perform any occupational tasks. Indeed, the evidence of record reflects that the Veteran would have some difficulty performing the physical duties of his prior employment as a mail carrier; however, the evidence of record does not indicate he is precluded from obtaining or maintaining substantially gainful employment due to his service-connected disabilities otherwise consistent with his educational and work history. The evidence demonstrates that the Veteran’s left wrist/hand symptoms may prevent him from performing occupational duties that involve lifting and gripping with his minor hand; however, the evidence does not reflect that he would not be able to perform occupational duties in an unskilled or semi-skilled position that does not involve the same level of lifting and gripping. The evidence also demonstrates that the Veteran’s hemorrhoid symptoms may prevent him from performing occupational duties that involve extensive walking and sitting; however, the evidence does not reflect that he would not be able to perform occupational duties in an unskilled or semi-skilled position that does not involve extended walking and sitting. The Court in Ray held that the appropriate standard for the Board when determining whether to remand a claim for TDIU pursuant to §4.16(b) is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Based on the Board’s review, the evidentiary record fails to demonstrate that the Veteran has been unemployable due solely to his service-connected disabilities at any time during the appeals period. Accordingly, there is no basis to refer this matter to the Director of Compensation Services for extraschedular consideration. The preponderance of the competent and probative evidence is against the claim. As such, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a TDIU is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.