Citation Nr: 21064052 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-02 407 DATE: October 18, 2021 ORDER Entitlement to an increased rating of 10 percent, but no higher, for residuals of a right hand strain with stress syndrome (right hand disability) is granted. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded FINDING OF FACT During the claim period, the Veteran's right hand disability caused painful motion during testing of the joints of the right hand. However, signs and symptoms affiliated with the right hand disability did not cause moderately severe dysfunction to Group VIII muscles at any point during the claim period. CONCLUSION OF LAW The criteria for an increased 10 percent rating, but no higher, for a right hand disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.56, 4.59, 4.73, Diagnostic Code 5399-5308; Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to December 1981, with additional service in the Army National Guard of New York and the United States Marine Corps Reserve. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In March 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Thereafter, in October 2019, the Board remanded the case for further development. The case has returned to the Board for appellate review. Increased Rating for a Right Hand Disability As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to an increased rating of 10 percent, but no higher, for his service-connected right hand disability. Accordingly, to this extent, the Veteran's claim is granted. In support of this determination, the Board first notes that the Veteran's right hand disability is currently evaluated pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5399-5308. The use of "5399" and a hyphenated diagnostic code indicates that the Veteran's disability is an unlisted disability rated by analogy to Diagnostic Code 5308. See 38 C.F.R. § 4.27. Diagnostic Code 5308 is assigned for muscle injuries impacting "Group VIII" musclesa muscle group of the forearm and hand. Group VIII muscles arise "mainly from external condyle of humerus: [e]xtensors of carpus, fingers, and thumb; supinator" and are responsible for the following functions: "[e]xtension of [the] wrist, fingers, and thumb; abduction of [the] thumb." See 38 C.F.R. § 4.73, Diagnostic Code 5308. Under Diagnostic Code 5308, noncompensable, 10 percent, 20 percent, and 30 percent ratings are respectively assigned for slight, moderate, moderately severe, and severe disabilities impacting Group VIII muscles of the dominant arm. Id. Comparatively, noncompensable, 10 percent, 20 percent, and 00 percent ratings are respectively assigned for slight, moderate, moderately severe, and severe disabilities impacting Group VIII muscles of the nondominant arm. Id. Here, the Veteran's right hand is his dominant hand. See December 2014 VA Examination Report. The concepts of "slight," "moderate," "moderately severe," and "severe" in the context of muscle disabilities are defined in 38 C.F.R. § 4.56. A slight disability is defined as a "[s]imple wound of muscle without debridement or infection" and features the objective findings of minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in the muscle tissue. Id. § 4.56(d)(1). Comparatively, a moderate disability is "[t]hrough and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection." Id. § 4.56(d)(2)(i). Objective findings of a moderate disability include "[e]ntrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue" as well as "[s]ome loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side." Applying these evaluative criteria in the instant case, the Board as an initial matter finds Diagnostic Code 5308 to be the most appropriate diagnostic code to evaluate the Veteran's service-connected right hand disability. In reaching this conclusion, the Board acknowledges the Veteran's March 2019 contention that he has experienced pain, numbness, and tingling as symptoms of his right hand disability. See March 2019 Hearing Tr. at 5, 12. However, in December 2019, a VA examiner opined that the Veteran's symptoms of numbness and tingling in the fingers were due to compression of the median nerve at the carpal tunnel, per EMG evidence from 2012, and had no relation to the Veteran's service-connected right hand disabilityi.e., residuals of a right hand disability. Accordingly, evaluation of the Veteran's service-connected disability pursuant to Diagnostic Code 5308 is appropriate in the instant case, and the Board will not further address whether compensation is warranted for the Veteran's unrelated complaints of numbness and tingling. Turing to the evidence of record, the Board notes that the Veteran was provided three VA examinations relevant to his right hand disability during the claim period. Firstly, in December 2014, the Veteran reported symptoms of right hand numbness in the palm and fingers during a VA hand and finger conditions examination. The Veteran did not report having any flare-ups of a right hand condition, but reported experiencing functional loss, which he described as not being able to write for any length of time due to numbness as well as feeling a brief sensation of cramping when using the right hand for 10 to 15 minutes. Initial range of motion testing of the right hand, including fingers, was normal and no objective evidence of painful motion of any implicated joint was observed. The examiner also stated that muscle strength testing was normal and that the Veteran did not display muscle atrophy or ankylosis of the thumb or any finger joints. Lastly, the examiner indicated that the Veteran's right hand was his dominant hand. Thereafter, the Veteran was provided a VA muscle injuries examination in February 2015. On this occasion, the Veteran again reported symptoms of right hand numbness, treated with gabapentin. The examiner opined that the Veteran's service-connected right hand disabilityas opposed to non-service-connected carpal tunnel syndromedid not affect muscle substance or function. During testing of muscle strength, the Veteran produced normal results and the examiner remarked that there was no muscle atrophy. Lastly, the examiner remarked that the Veteran did not have pain on palpation or with range of motion testing, and indicated that the symptoms presented by the Veteran were more related to carpal tunnel syndrome as opposed to his service-connected residuals of right hand strain. Following the Board's October 2019 remand, another VA hand and finger examination was provided in December 2019. On this occasion, the Veteran again complained of symptoms of right hand numbness. While the Veteran displayed normal motion during range of motion testing of the right hand, the examiner remarked that painful motion was observed. The examiner remarked that the Veteran's muscle strengthincluding his grip strengthwas normal and that ankylosis was not present. Separate from these VA examination reports, the Board notes that VA treatment records associated with the claims file address the nature and severity of the Veteran's right hand disability during the claim period. Specifically, in August 2019, the Veteran underwent a VA orthopedic surgery consultation. On this occasion, the Veteran reported right hand numbness and the provider noted that the Veteran was offered a carpal tunnel release. Symptoms affiliated with the Veteran's right hand strain were not noted. Relatedly, right hand numbness was noted in VA treatment records from May 2014, February 2017, November 2017, and May 2019. However, on none of these occasions were the Veteran's numbness symptoms affiliated with his service-connected disability. In light of the above, the Board concludes that the Veteran's right hand disability has not presented with symptoms greater than a slight disability of the Group VIII muscle groupas defined in 38 C.F.R. § 4.56such that a rating greater than noncompensable may not, at first blush, be assigned under Diagnostic Code 5308. Nevertheless, the Board notes that, when evaluating disabilities of the musculoskeletal systemsuch as the Veteran's service-connected right hand disabilityit is the intent of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Southall-Norman v. McDonald, the Court of Appeals for Veterans Claims (Court) held that the application of 38 C.F.R. § 4.59 was not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. 28 Vet. App. 346, 352 (2016). The Court then explained that 38 C.F.R. § 4.59 conditioned the award of a minimum compensable rating on evidence of "an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable [Diagnostic Code]." Id. (citation omitted). Pursuant to Southall-Norman, the Board concludes that 38 C.F.R. § 4.59 is applicable in the instant case as the Veteran displayed painful motion of the right hand during the December 2019 VA hand and finger conditions examination. Such exhibition of painful motion warrants the assignment of a minimal compensable rating10 percentunder Diagnostic Code 5308. Accordingly, to this extent, the Veteran's appeal is granted. REASONS FOR REMAND As stated previously in the Board's October 2019 remand, during his March 2019 Board hearing, the Veteran testified that he was currently unemployed because of his service-connected disabilities. See March 2019 Hearing Tr. at 10. As such, entitlement to a TDIU was raised as part and parcel of the Veteran's right hand increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). However, VA may not take into account the individual veteran's age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). At the outset, the Board notes that the Veteran does not mees the schedular requirements for a TDIU. Specifically, he currently does not have (1) one disability rated at 60 percent or more, or (2) at least one disability rated at 40 percent with sufficient additional service-connected disabilities to bring his combined rating to 70 percent. 38 C.F.R. § 4.16(a). Nevertheless, when the schedular criteria are not met, but a veteran is still unemployable by reason of service-connected disabilities, VA is to submit the case to the Director, Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). Accordingly, in the instant case, the Board refers the Veteran's claim to the Director for initial consideration of whether a TDIU is warranted on an extra-schedular basis. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU to the Director, Compensation Service, for extra-schedular consideration. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.