Citation Nr: 21004358 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-30 826 DATE: January 26, 2021 ORDER Entitlement to service connection for bilateral hand and wrist strains is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to August 2, 2018 (effective January 6, 2010), is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s bilateral hand and wrist strains began during active service or are causally or etiologically due to service. 2. For the period prior to August 2, 2018, resolving all doubt in the Veteran’s favor, the competent and credible evidence of record demonstrates that the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hand and wrist strains have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.303. 2. Prior to August 2, 2018 (effective January 6, 2010), the criteria for a TDIU, on an extraschedular basis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1970 to December 1971 and June 1972 to August 1974. The appeal for entitlement to service connection for bilateral hand and wrist strains comes before the Board of Veterans’ Appeals (BVA or Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board, pertaining to the issue of entitlement to service connection for bilateral hand and wrist strains. The requested hearing was conducted in June 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In August 2017 and September 2018, the Board remanded the claims of entitlement to service connection for bilateral hand and wrist strains and entitlement to a TDIU for additional development. In a March 2020 rating decision, the Veteran was granted entitlement to a TDIU, effective August 2, 2018. In June 2020, the Board remanded the claims of entitlement to service connection for bilateral hand and wrist strains and entitlement to a TDIU, prior to August 2, 2018, on an extraschedular basis. Service Connection 1. Entitlement to service connection for bilateral hand and wrist strains. The Veteran seeks entitlement to service connection for bilateral hand and wrist strains. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). The Veteran has a current diagnosis of bilateral hand and wrist strains. See October 2018 VA examination. As such, element (1), current disability, for service connection is met. Regarding element (2), an in-service incurrence or aggravation of a disease or injury, the Veteran’s service treatment records are negative, including Reports of Medical History prepared by him dated in November 1971, February 1972, and October 1980, which contain no relevant complaints. The Board, however, finds the Veteran’s contention that he experienced cramping in his fingers, hands, and wrists during service while using a particular type of gun is plausible. See June 2016 BVA Hearing Transcript, pages 14-16. Therefore, the Board finds the Veteran experienced symptoms of finger, hand and wrist cramping during service. Shedden element (2) is met. The remaining issue for the Board to consider is whether there is a nexus, Shedden element (3), between the Veteran's currently diagnosed bilateral hand and wrist strains and his active military service. In support of his claim, the Veteran and his wife testified in June 2016 that his bilateral hand and wrist disorders affect his ability to do daily activities and chores around the house. The Veteran also testified that he believes his current disorders are a result of firing and loading specific weapons during service. This claim was remanded in August 2017 to afford the Veteran a VA examination and obtain a medical opinion. The Veteran was afforded a VA examination in November 2017. He was diagnosed with bilateral wrist strains and bilateral hand strains. The examiner opined that the Veteran’s diagnosed wrist and hand strains were less likely than not incurred in, caused by, or a result of service, to include due to use of a specific type of weapon during service. The examiner stated the rationale for the opinion was that there is an absence of diagnosis of strain being incurred in, caused by or a result of active military service or due to use of a specific type of weapon during service. In September 2018, the Board found the November 2017 VA medical opinion was inadequate and remanded to obtain a thorough medical opinion with rationale. As a result of the September 2018 Board remand, an addendum opinion was obtained in October 2018. The examiner again opined that the Veteran’s disorder was less likely than not due to service, indicating that it would be a resort to speculation to opine on the etiology because the objective evidence finds absence of a definite etiology of the strains. In June 2020, the Board explained that an accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. Alemany v. Brown, 9 Vet. App. 518 (1996); 38 U.S.C. § 5107 (b). The Board found the October 2018 VA opinion was inadequate as it was based upon the absence of a definite etiology of the Veteran’s bilateral hand and wrist strains and the standard for a nexus opinion does not require a “definite etiology,” merely the connection need only be “at least as likely as not.” Jones v. Shinseki, 23 Vet. App. 382, 388 (2010). The claim was remanded again to obtain a VA medical opinion that applied the correct standard. A VA medical opinion was obtained in July 2020. The examiner opined that the Veteran’s bilateral hand and wrist strains were less likely than not due to service. The examiner explained that there was no evidence of hand or wrist conditions during service or proximate to service; the Veteran’s separation examination was negative for hand or wrist complaints. The examiner noted that the Veteran did not complain of hand or wrist symptoms until many years after service. Based on this evidence, the examiner opined that the Veteran’s disorders were more likely due to age and normal wear and tear. An addendum opinion was received in September 2020. The examiner opined that the Veteran’s bilateral hand and wrist strains were less likely than not due to firing of a specific weapon during service. The examiner explained that a review of the August 1974 examination as well as the report of medical examination dated October 1980 show that the Veteran had normal examinations for the upper extremities and the first time that hand or wrist pain shows up as a complaint within the medical record was in June 2001, pertaining to left wrist and left hand pain due to a motor vehicle accident which occurred in 1998. The examiner stated that since the wrist and hand pain was not evident for more than 20 years after service, it cannot be tied to service, or the firing of any type of weapon. The examiner then specifically considered the Veteran’s claims of chronic pain in the wrists and hands since service, noting that in the November 2017 VA examination, the Veteran reported that the pain in the wrists and hands has been chronic with no recent changes or progressions to that pain since leaving the military in 1974. The examiner also noted, however, that the complaints of hand and wrist pain do not show up in the medical record until the reference to the 1998 motor vehicle accident, which was 24 years after service. The examiner explained that the Veteran’s statements regarding symptoms were noted and deemed credible; however, the Veteran is not qualified to ascribe those symptoms to a diagnosis. The examiner stated that there are no medical records to support the Veteran's statements of the hand and wrist pain to tie to any time near service, and the Veteran's statements do not show a connection between the 2017 diagnosis for bilateral hand and wrist strains and the claims of hand and wrist pain since 1974. The Board finds the July 2020 and September 2020 VA medical opinions highly probative as they clearly consider the Veteran's contentions, including the reports of pain since service, along with a review of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). The opinions contain clear conclusions with supporting data and a reasoned medical explanation connecting the two. The lay contention that the symptoms of pain in service and over the years reflect that the Veteran’s current disorders had an onset during service has been rendered unfounded by the medical expert who carefully considered the lay statements. As such, Shedden element (3), nexus, is not met, and service connection is not warranted. The Veteran has not submitted any medical opinions in support of his claim. Instead, he relies on his own lay statements and those he has submitted from his wife. When considering lay evidence concerning service connection, the Board must determine, on a case-to-case basis, whether the particular disability is the type of disability for which lay evidence is competent; and if it is, the Board must weigh that evidence against the other evidence of record in making its determinations regarding the existence of service connection. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board notes that hand and wrist strains may have many causes. Thus, the nexus issue in this case falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1372. Medical evidence is, therefore, necessary to determine the etiology of the Veteran's disorders. Consequently, any lay statements relating the Veteran's symptoms during service to his currently diagnosed bilateral hand and wrist strains are assigned little probative value as the lay person giving such statement is not competent to provide a medical statement of etiology. See 38 C.F.R. § 3.159(a). Therefore, after considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for bilateral hand and wrist strains is warranted. The Board has considered the doctrine of reasonable doubt but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. TDIU 2. Entitlement to a TDIU, prior to August 2, 2018. The Veteran seeks entitlement to a TDIU. The Board notes that the Veteran’s claim for TDIU is considered part and parcel of his increased rating claim (pes planus) which was based on a claim recognized as having been initiated by a January 2010 VA examination. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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. See 38 C.F.R. § 4.16. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. The economic component requires a determination as to whether a Veteran’s income exceeds the poverty threshold. The noneconomic component requires a determination as to a Veteran’s ability to secure and follow such employment. With regard to the latter component, attention should be given to the Veteran’s history, education, skill, and training. Consideration should also be given to both the Veteran’s physical and mental abilities. From a physical standpoint, possible relevant factors include the Veteran’s limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Regarding the Veteran’s mental ability, possible relevant factors include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether unemployability exists, consideration should not be given to the Veteran’s age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned where the schedular rating is less than total 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 service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16 (a). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service-connected disabilities, but the functional impairment caused solely by his service-connected disabilities. Entitlement to a TDIU, on a schedular basis, was granted in a March 2020 rating decision, effective August 2, 2018. Prior to August 2, 2018, the Veteran was service connected for posttraumatic stress disorder (PTSD), as 30 percent disabling from May 2002 to September 2003 and 50 percent disabling from September 2003 to August 2018, chronic low back syndrome as 10 percent disabling from April 1985 to July 2006, and as 20 percent disabling thereafter, and bilateral pes planus, as 10 percent disabling from January 6, 2010. The Veteran’s combined rating is 10 percent from April 1985, 40 percent from May 2002, and 60 percent, from September 2003 to August 2018. Thus, the Veteran is not schedularly eligible for a TDIU, prior to August 2, 2018. In June 2020, the Board remanded this issue for extraschedular consideration. In November 2020, the Director of Compensation Service issued a memorandum that denied entitlement to a TDIU on an extraschedular basis, prior to August 2018. The Board notes that such referral is a prerequisite for the Board’s own consideration of awarding an extraschedular rating, however, the Director’s finding is not binding on the Board. Thus, the Board must make its own determination in reviewing the Veteran’s claim. Regarding the economic component of TDIU, the Veteran indicated on his July 2018 VA Form 21-8940 that he last worked full time in June 1999 in telecommunications as an inventory supervisor. Records from the Social Security Administration (SSA) demonstrate that the Veteran last had substantially gainful employment in 1999. See August 2018 Certification of Extract from Social Security Administration Records. This evidence supports the Veteran’s timeline of his employment. Thus, the economic component of TDIU is satisfied for the entire period on appeal. Regarding the non-economic component of TDIU, the Board first notes that the Veteran reported that his highest level of education is a high school general education diploma (GED), which he asserts limits his potential jobs to mostly physical labor which he has been unable to complete. He also indicated he received telecommunications training in 1974. The Veteran was afforded a VA examination in January 2010 for his bilateral feet. Examination revealed mild pes planus without weight-bearing, and moderate pes planus with weight-bearing. There was no callosity or skin breakdown or malalignment of the Achilles tendon. He was diagnosed with bilateral moderate flat-footedness. The Veteran was afforded a VA examination for his bilateral feet in November 2017. He reported constant pain on the bottom of his feet but did not report flare-ups. The Veteran indicated that he had functional impairment in the form of pain with prolonged standing or walking. The examiner noted the Veteran had accentuated pain on use of the feet, but no swelling, callouses, or pain on manipulation. The Veteran used orthotics that relieved symptoms, bilaterally. The examiner indicated the Veteran did not have extreme tenderness of plantar surfaces, no objective evidence of marked deformity, but had decreased longitudinal arch height of both feet on weight-bearing. A private medical opinion was received, dated December 2020. The vocational consultant indicated that the claims file was reviewed, and a telephone interview was conducted. The Veteran reported that he worked as an inventory supervisor from 1982 to 1999 and was responsible for completing paperwork, filing, and supervising employees. The Veteran reported that while working in this position, he had difficulty getting along with his employees, was involved in arguments and would yell at employees if they did not complete their work correctly. He also reported an inability to stand or walk for prolonged periods of time due to low back pain, spasms, and fatigue as well as bilateral foot pain. He reported impaired sleep, secondary to nightmares and hypervigilance, impaired concentration secondary to low energy, fatigue, anxiety and depression, due to PTSD and distracting low back and bilateral foot pain. The Veteran also reported an impaired ability to interact appropriately with others secondary to irritability, isolation, and dangerous outburst, secondary to PTSD. The vocational specialist opined it is more likely than not that the Veteran has been precluded from securing and following substantially gainful employment, to include unskilled sedentary employment, as a result of his service-connected PTSD and low back syndrome from at least September 2009 to the present and is further precluded from employment as a result of his service-connected bilateral pes planus from at least January 2010 to the present. The specialist explained that although the Veteran has a strong work history as an inventory supervisor, he has at least as likely as not been unable to apply any skills he may have acquired through his work experience to sedentary occupations due to the limitations from his service-connected disabilities. Regarding physical abilities, the specialist explained that sedentary employment requires the ability to sit for up to two thirds of an eight hour work day and stand or walk for up to one-third of an eight hour work day; however, the Veteran’s limitations as noted in the medial evidence of record have at least as likely as not limited his ability to meet these requirements since prior to August 2018. Specifically, a September 2006 VA examination for spine conditions reported that walking causes flare-ups, he was unable to walk when experiencing back spasms and he could only walk less than one mile, at most. A January 2010 VA examination for the feet reported that the Veteran was limited to standing for 20 to 30 minutes and walking several city blocks as a result of his bilateral pes planus. Similarly, an April 2013 pain assessment reported his pain resulting from his bilateral pes planus was worsened with walking. Lastly, the November 2017 VA examination for foot conditions reported he was incapable of standing and walking for extended periods of time. The specialist stated that the limitations noted are inconsistent with the physical requirements of sedentary employment. The specialist opined that a result of his inability to stand or walk for prolonged periods due to low back pain, fatigue, and spasms, as well as bilateral foot pain, the Veteran has more likely than not been unable to consistently meet the full range of physical requirements for even sedentary employment since prior to August 2018. Regarding mental abilities, the vocational specialist stated that employers expect employees to sustain focus on work tasks for at least 2 consecutive hours and will generally not tolerate off-task behavior for more than six minutes in one hour, or 10 percent of the workday. The specialist explained that the Veteran’s service-connected low back and bilateral foot disabilities cause him constant daily pain that is distracting and has more likely than not interfered with his ability to sustain concentration for at least two consecutive hours from at least September 2009 and January 2010, consecutively. Continuing, the specialist noted the September 2006 VA examination for spine conditions noted constant, severe pain that was stabbing and sharp. A May 2010 podiatry consultation noted complaints of painful feet and an April 2013 pain assessment described sharp, shooting pain in the right foot that was constant. The November 2017 VA examination for foot conditions noted constant pain in the bottom of both feet. The vocational specialist indicated that this inability to consistently attend to work tasks would have compounded over the course of a work day and at least as likely as not caused him to be off-task in excess of employer tolerances, which would reduce his ability to consistently meet employer expectations of daily productivity. He would also more likely than not have needed regular direction and reminders to remain on task due to his difficulty sustaining concentration for at least 2 hours at a time, and as a result he would be considered an underproductive and unreliable employee by employers. The vocational specialist also explained that the Veteran’s PTSD has contributed to his inability to secure or follow even unskilled sedentary employment since at least September 2009. The specialist stated that the Veteran’s difficulty for meeting requirements of sedentary employment are documented in the medical and lay evidence. Specifically, in October 2006, a VA examination for PTSD noted dysthymia several times per week, worry, frustration, low energy, concentration problems, sleep impairment, and hopelessness. The Veteran reported he mostly stayed to himself and typically slept only a few hours before awakening. Recently memory was mildly impaired, with an example given that he forgets what he wants to do when walking into a room. The examiner remarked that the Veteran’s concentration decline could reduce his reliability and productivity and his low frustration tolerance could contribute to social avoidance. A September 2011 psychiatric note described the Veteran as irritable, angry, indignant, and somewhat depressed. Another psychiatric note reported paranoia, always looking over his shoulder to see if someone is behind him and indicated that he was jumpy, irritable, and somewhat depressed. In March 2013, a treatment note discussed the Veteran’s complaints of being under a lot of stress and anxiety, and experiencing depression, crying spells, suicidal thoughts, flashbacks, avoidance of crowds, anger spells and paranoia. Further, the Veteran’s PTSD symptoms have caused him to isolate, experience anger and irritability and have a difficult time interacting with others due to experiencing discomfort while in crowds or in any public setting. The vocational specialist opined that all employment, even that which is primarily performed alone, requires employees to interact with coworkers, supervisors, or the general public to some minimal degree; there is no employment which would allow for total isolation. The vocational specialist opined that the Veteran’s PTSD has impaired his ability to interact appropriately with others and his tendency to isolate has impacted his ability to communicate effectively with others in a professional setting. These limitations in concentration, pace, productivity, and interpersonal interaction have ultimately eliminated his ability to apply previously learned skills to new work tasks and has more likely than not caused him to have difficulty learning new work tasks. In this case, the Board finds the private vocational specialist’s opinion is persuasive and probative. The private consultation is very thorough and complete and not only opines that the Veteran’s service-connected disabilities prevented gainful employment prior to August 2018, but specifically supports this opinion with medical evidence from the claims file. Based on a review of the evidence, the Board finds there is no indication of a drastic change in the Veteran’s condition between his claim for an increase in 2010 and August 2018, the current TDIU effective date. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities precluded him from securing or maintaining gainful employment, prior to August 2018. In view of the totality of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unemployable due to his service-connected disabilities, prior to August 2018. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). (Continued on the next page)   As the above evidence is sufficient to show the Veteran was unemployable by reason of his service-connected disabilities, entitlement to a TDIU, prior to August 2, 2018, on an extraschedular basis, is granted. As the TDIU issue is before the Board pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the appropriate effective date is the date service connection was established for bilateral pes planus—January 6, 2010. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.