Citation Nr: 21067117 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-31 585 DATE: November 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a left wrist disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's left wrist disability has been manifested by painful and limited motion, weakness, and difficulty gripping objects, but there is no evidence of ankylosis, even when considering functional loss during flare-ups and with repeated use over time. 2. The Veteran did not return a completed VA Form 21-8940 to support his claim of entitlement to a TDIU, and the evidence of record is insufficient to find that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left wrist disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5215. 2. The criteria for establishing entitlement to a TDIU are not 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 served on active duty from August 1979 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted entitlement to service connection for a left wrist disability and assigned a 10 percent rating. The Veteran timely perfected an appeal. See November 2013 Notice of Disagreement; June 2015 Statement of the Case; August 2015 VA Form 9. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge, a transcript of which is of record. In March 2019, the Board, in pertinent part, found that a claim of entitlement to a TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue of entitlement an increased rating for a left wrist disability and the issue of entitlement to a TDIU for additional development. In May 2021, the Board again remanded the issues on appeal for additional development. I. Increased Rating The Veteran seeks an increased rating for his service-connected left wrist disability, which is currently assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5215. A. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. 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, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under Diagnostic Code 5215, limitation of motion of the major and minor wrist with palmar flexion limited in line with the forearm warrants a 10 percent disability rating. Alternatively, a 10 percent rating may be assigned for limitation of motion of dorsiflexion of the wrist less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Higher ratings are warranted under Diagnostic Code 5214 where there is ankylosis of the wrist. Under Diagnostic Code 5214, a rating of 20 percent is warranted if there is favorable ankylosis of the minor wrist in 20 to 30 degrees dorsiflexion. A rating of 30 percent is warranted if there is ankylosis of the minor wrist in any other position except favorable. A rating of 40 percent is warranted if there is unfavorable ankylosis of the minor wrist in any degree of palmar flexion, or with ulnar or radial deviation. A note under diagnostic code 5214 says that extremely unfavorable ankylosis will be rated as loss of use of hands under diagnostic code 5125. Normal range of motion of the wrist includes dorsiflexion (extension) from zero to 70 degrees, palmar flexion from zero to 80 degrees, ulnar deviation from zero to 45 degrees, and radial deviation from zero to 20 degrees. See 38 C.F.R. § 4.71a, Plate I. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 76543, 76463 (Nov. 30, 2020). However, the rating criteria for Diagnostic Codes 5214 and 5215 were not affected by those regulatory changes. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). B. Factual Background Turning to the evidence of record, the Veteran was afforded a VA examination in May 2013. He reported that his left wrist was painful and tender. He also reported flare-ups of left wrist symptoms, including increased weakness, tenderness, pain, and throbbing, which limit his ability to pick up items and grip items. The examiner noted that the Veteran was right-hand dominant. Range of motion testing of the left wrist revealed palmar flexion to 60 degrees, with no objective evidence of painful motion; dorsiflexion (extension) to 55 degrees, with no objective evidence of painful motion; radial deviation to 20 degrees, with no objective evidence of painful motion; and ulnar deviation to 40 degrees, with no objective evidence of painful motion. After three repetitions of motion, there was no additional limitation of range of motion, but there was functional loss due to less movement than normal and pain on movement. There was localized tenderness or pain with palpation of the left wrist. Muscle strength testing was normal, and there was no evidence of ankylosis. X-rays did not show arthritis. The examiner noted a diagnosis of left wrist strain. The examiner indicated that the Veteran's left wrist disability impacts his ability to work in that it affects his ability to grip and hold items at times. The Veteran was afforded a VA examination in July 2020. He reported left wrist pain and weakness, with limited grip. He denied flare-ups. The examiner noted that the Veteran was right hand dominant. Range of motion testing of the left wrist revealed palmar flexion to 60 degrees, dorsiflexion (extension) to 60 degrees, radial deviation to 20 degrees, and ulnar deviation to 30 degrees. Pain was noted with palmar flexion and dorsiflexion, but the examiner indicated that it did not caused functional loss. There was no evidence of localized tenderness/pain to palpation. There was no evidence of pain with weight bearing or crepitus. There was no evidence of pain with passive motion or with non-weight bearing. After three repetitions of motion, there was no additional limitation of motion or functional impairment. The examiner opined that pain would significantly limit functional ability with repeated use over time but estimated that range of motion would not change. There were no additional contributing factors of disability. Muscle strength was decreased (4/5) with flexion, but the examiner indicated that the reduction in muscle strength was due to suboptimal effort and not due to his left wrist disability. There was no evidence of muscle atrophy or ankylosis. The Veteran was afforded a VA examination in August 2021. He reported left wrist pain, stiffness, and discomfort. He also reported flare-ups of severe pain about three to four times per week precipitated by lifting. The Veteran reported functional impairment due to an inability to left and carry objects. The examiner noted that the Veteran was right-hand dominant. Active and passive range of motion testing of the left wrist revealed palmar flexion to 80 degrees, dorsiflexion (extension) to 70 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. Pain was noted with dorsiflexion and palmar flexion, to include with weight bearing and with non-weight bearing, and the pain itself caused functional loss. There was no evidence of crepitus or localized tenderness/pain to palpation. After three repetitions of motion, palmar flexion decreased to 70 degrees and dorsiflexion (extension) decreased to 60 degrees. Radial deviation and ulnar deviation remained the same. The examiner indicated that there was additional functional loss due to pain and lack of endurance. The examiner opined that pain and lack of endurance would significantly limit functional ability with repeated use over time and estimated that range of motion would decrease to 70 degrees of palmar flexion and 60 degrees of dorsiflexion (extension). The examiner also opined that pain, fatigability, and lack of endurance would significantly limit functional ability during flare-ups and estimated that range of motion would decrease to 60 degrees of palmar flexion and 60 degrees of dorsiflexion (extension). There were no additional contributing factors of disability, and there was no evidence of ankylosis. There was no evidence of muscle atrophy. X-rays did not show left wrist arthritis. The examiner indicated that the Veteran's left wrist disability would impact his ability to work due to difficulty associated with gripping or grasping objects and lifting and carrying objects heavier than 30 pounds. During the October 2018 Board hearing, the Veteran reported left wrist pain and difficulty grasping/gripping objects. The Board also reviewed VA treatment records, which do not reflect any complaints related to a left wrist disability. C. Analysis Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a rating in excess of 10 percent were not met at any point during the appeal period. The Veteran is already in receipt of the maximum disability rating for limitation of motion of the wrist. In order to warrant a higher rating under Diagnostic Code 5214, there must be evidence of ankylosis, or the functional equivalent of ankylosis, which is not present here. In this regard, although the Veteran's range of motion was limited, especially with repeated use over time and during flare-ups, he maintained significant range of motion of his left wrist throughout the appeal period, and none of the VA examiners found evidence of ankylosis. Thus, the Veteran, by definition, does not have left wrist ankylosis. See Dorland's Illustrated Medical Dictionary at 94 (33d ed. 2019) (ankylosis is the "complete limitation of motion" of a joint). The Board has also considered whether the Veteran's symptoms approximate ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (holding that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis). However, the evidence in this case does not show the functional equivalent of ankylosis, even when contemplating functional loss due to symptoms such as pain, fatigue, and lack of endurance, or as a result of repetitive use over time and/or flare-ups. As discussed above, even with repeated use over time and during flare-ups, the Veteran's range of motion was at worst, 60/80 degrees of palmar flexion, 55/70 degrees of dorsiflexion (extension), 30/45 degrees of ulnar deviation, and normal radial deviation. The Board further finds that there is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 204-07. The Veteran is already in receipt of the maximum disability rating available for limited motion of the wrist absent ankylosis. In addition, none of the medical evidence suggests that the severity of his service-connected left wrist disability is the functional equivalent of ankylosis. Notably, all of the VA examinations from the period on appeal demonstrated that the Veteran retained at significant range of motion in his left wrist, even with Deluca considerations. Hence, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for the assignment of a rating higher than 10 percent based on functional loss. The Board has considered all the Veteran's symptoms associated with his left wrist, including pain, weakness, and reduced range of motion and finds that his symptoms do not more nearly approximate a higher rating under any applicable diagnostic code. The Veteran is competent to report his symptoms and credible in his belief that his back disability warrants higher ratings. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the extent of the wrist impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on 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 of the Veteran's left wrist. Thus, while the Board acknowledges the Veteran's reports of wrist symptomatology, especially exacerbations of wrist pain, the evidence in this case shows that the ratings assigned appropriately compensate the Veteran to the extent that he does have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.4; DeLuca. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 10 percent disability rating for his left wrist disability for the entire period on appeal. See 38 C.F.R. § 4.7. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating. II. TDIU Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, or if there are two or more disabilities, there shall be at least one 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). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a Veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of Compensation Service for extraschedular consideration. The question therefore becomes whether or not the Veteran is unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities. 38 C.F.R. § 4.16 (b). Here, for the entire period on appeal, the Veteran has been service connected for (i) flat feet, rated as 30 percent disabling; (ii) a left wrist disability, rated as 10 percent disabling; and (iii) bilateral hallux valgus, rated as noncompensable. These disabilities combine to a 40 percent rating. Thus, for the entire appeal period, the Veteran did not meet the schedular criteria for a TDIU outlined above. 38 C.F.R. § 4.16 (a). Nevertheless, the Board must consider whether the evidence otherwise warrants referral to the appropriate VA officials for entitlement to a TDIU on an extra-schedular basis under the provisions of 38 C.F.R. §4.16 (b). The key determination, then, is whether the Veteran is unemployable. The Board finds there is insufficient evidence of record to show that the severity of the Veteran's service-connected disabilities precludes him from securing and following a substantially gainful occupation in light of his education, training, and employment background. Pursuant to the Board's March 2019 remand instructions, VA furnished the Veteran with a notice letter and requested that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In July 2020, the Veteran submitted an incomplete VA Form 21-8940, which was missing the second page (i.e., the section regarding employment and educational history.) Thereafter, in July 2020, VA sent the Veteran a letter notifying him that the form was incomplete and requesting that he provide more complete information in support of his TDIU claim. The Veteran did not submit any additional information. In the May 2021 remand, the Board noted that the information regarding the Veteran's previous employment and education was incomplete and afforded him "a final opportunity to provide a VA Form 21-8940 completed in full." Pursuant to the Board's May 2021 remand instructions, in May 2021, VA again furnished the Veteran with a notice letter and requested that he complete a VA Form 21-8940. To date the Veteran has not submitted a complete VA Form 21-8940. While failure to complete a VA Form 21-8940 is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address the claim. The Board notes that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Here, the Board finds that the Veteran's service-connected disabilities do not preclude the Veteran from securing or following a substantially gainful occupation. While the evidence reflects that the Veteran's feet and left wrist disabilities cause some occupational impairment, it has not been persuasively shown to impact him so severely as to completely preclude him from obtaining and maintaining substantially gainful employment consistent with his work experience and education. Moreover, because the Veteran did not provide the requested VA Form 21-8940, the Veteran's file lacks specific information about how the Veteran's service-connected disabilities render him unemployable. There is no evidence of when (or if) the Veteran became unemployed, and there is very limited information regarding his past employment experience and educational background. While the Board has tried to obtain additional evidence, the Veteran has not provided it. Given this, the Board finds that the most probative evidence shows that the Veteran is not unable to secure or maintain gainful employment due to his service-connected disabilities. In summary, the evidence of record does not persuasively show that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. The Board acknowledges the medical and lay evidence that the Veteran's service-connected feet and left wrist disabilities impact his occupational functioning; however, a disability rating in itself is recognition that the ability to work is impaired. 38 C.F.R. § 4.1. The Veteran's failure to submit a complete VA Form 21-8940 has also precluded the consideration of potentially favorable evidence as a completed form could have provided more information regarding the Veteran's work history and reasons for not being able to maintain employment. See Wood, 1 Vet. App.190, 193 ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Therefore, the Board declines to refer the Veteran's TDIU claim to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). As the preponderance of the evidence is against the claim, the benefit-of -the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.