Citation Nr: 21074264 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 12-07 807 DATE: December 14, 2021 ORDER An extraschedular rating for bilateral wrist fracture residuals, to include painful scars, pursuant to 38 C.F.R. § 3.321, exclusive of the periods where a temporary total rating has been assigned, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (hereinafter, TDIU) on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) is denied. FINDINGS OF FACT 1. The Veteran's residuals of bilateral wrist fracture, to include painful scars, do not result in symptoms not contemplated by the applicable rating criteria for his disabilities. 2. For the entire appeal period stemming from his July 2011 claim, his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for residuals of bilateral wrist fracture, to include painful scars, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, exclusive of the periods where a temporary total rating has been assigned, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321. 2. The criteria for a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) have not 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 served on active duty from May 2003 to June 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In September 2012, the Board found that the issue of entitlement to a TDIU had been raised by the record in connection with the Veteran's July 2011 increased rating claim for residuals of the bilateral wrist fracture, to include scars. In September 2012, the Board remanded the issues of entitlement to a rating in excess of 20 percent for bilateral wrist fracture residuals, to include scars, and entitlement to a TDIU for additional development. In December 2015, the Board denied the claim for an increased rating and remanded the matters related to an extraschedular rating and a TDIU claim. The VLJ who conducted the July 2012 hearing subsequently retired. A letter was sent to the Veteran in February 2017 informing him of the VLJ's retirement and advising him that he may testify at a new Board hearing before a different VLJ; however, the offer letter was returned as undeliverable as it appears to have been sent to an old address. Notwithstanding, the February 2017 letter was also sent to the Veteran's representative. Additionally, the Board observes that the April 2017 Remand addressed the February 2017 letter with regard to the VLJ's retirement and the offer for a new hearing. Although the records reflect that such mailing to the Veteran, to include the April 2017 Remand, was returned as undeliverable, it was subsequently re-issued in July 2018. The records reflect this subsequent mailing was returned when sent to a Bronx, New York, address in February 2020. However, the Board notes that the Veteran's representative has not asserted a request for a new hearing on behalf of the Veteran in any of the subsequent communications since February 2017, to include in his Informal Hearing Presentations (IHPs). In April 2017, March 2018, October 2019, and April 2020, the Board remanded the issues of entitlement to a rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 and entitlement to a TDIU for additional development. While on remand, an August 2021 rating decision was issued in which the RO found it was clear and unmistakable error to assign two separate ratings for residuals of painful scars of the right wrist and residuals of painful scars of the left wrist; the rating decision combined the two evaluations under one separate evaluation of painful scars, bilateral wrist fracture residuals with an increased 20 percent evaluation, effective July 26, 2012. This resulted in a combined 40 percent rating for his bilateral wrist fracture residuals. The appeal now returns for further appellate review. 1. Entitlement to an extra-schedular rating for bilateral wrist fracture residuals, to include painful scars, exclusive of the periods where a temporary total rating has been assigned. An extra-schedular rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. Where the Board finds that an extra-schedular rating may be warranted based on the above factors, the Board cannot grant it in the first instance. Rather, it must remand the claim to the RO for referral to the Director of Compensation and Pension (Director). See Thun, supra. In the instant case, the Board remanded the claim in December 2015 for referral to the Director and, in an April 2016 administrative decision, the Director found an extra-schedular rating was not warranted, and the RO continued the denial in the May 2016 supplemental statement of the case (SSOC). However, the Board must conduct its own de novo review of the issue. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). As an initial matter, as reflected in the February 2015 VA examination, the Veteran is left hand dominant. Turning to the first element of Thun outlined above, to warrant an increased rating on an extra-schedular basis, the Veteran's level of impairment due to his residuals of bilateral wrist fracture must not be adequately contemplated by the currently-assigned schedular rating. As previously discussed, the Veteran's bilateral wrist fracture is rated as 20 percent disabling under DC 5215, and his painful scarring of his wrists as associated with the residual fractures are rated a combined 20 percent disabling under Diagnostic Code (DC) 7804. The Board notes the Veteran's assertion that his bilateral wrist fracture should have been rated under DC 5214. However, based on the reasons set forth herein, the Board is evaluating the Veteran's entitlement to an extra-schedular evaluation related to the residuals of his bilateral wrist fracture under the currently assigned DC 5215. In this regard, Diagnostic Code 5215 provides for a 10 percent rating for both the major and minor extremity where there is limitation of motion of the wrist with dorsiflexion to less than 15 degrees or palmar flexion limited in line with the forearm. Such is the maximum rating available under such Diagnostic Code. Under Diagnostic Code 5214, in order to warrant a rating in excess of 10 percent, ankylosis of the wrist must be shown. Specifically, Diagnostic Code 5214 provides that where there is ankylosis of the wrist that is favorable in 20 degrees to 30 degrees of dorsiflexion, a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity is warranted. Where there is ankylosis of the wrist in any other position, except favorable, a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity is warranted. Where there is ankylosis of the wrist that is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation, a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity is warranted. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Per the X-ray examination completed in conjunction with the July 2011 VA examination, and the July 2011 VA examination report, there was no evidence of ankylosis. However, the VA examiner who conducted the February 2015 examination indicated that, in addition to pain, both wrists had less movement than normal due to ankylosis, adhesions, etc., deformity, and disturbance of locomotion. Notwithstanding, even if the Veteran has ankylosis, the record does not support impairment under DC 5214 in excess of 10 percent; there is no evidence of favorable ankylosis in 20 to 30 degrees of dorsiflexion or unfavorable ankylosis in any area. In accordance with the December 2015 Remand, the Board, in part, referred the matter to the Director for a determination as to whether the assignment of an extra-schedular rating was warranted under 38 C.F.R. § 3.321(b)(1). Per an April 2016 administrative decision, the Director determined there was no indication that the Veteran has been hospitalized for any extended periods of time due to his service- connected conditions; the evidence did not show that the Veteran's disabilities have a marked interference with employment which would render the application of the regular rating schedular standards impractical; and the medical evidence did not show that the Veteran would be unemployable in all environments, including a sedentary one, due solely to his service-connected disabilities. Notably, the Board must now undertake its own de novo review of the claim. Turning to the Veteran's level of impairment, the July 2011 VA examination demonstrates that the Veteran reported that he injured his wrists in 2005 during a snowboarding accident. The Veteran reported he was initially treated with a cast and underwent surgery about eight months later. The Veteran reportedly had a second operation on his left hand in 2009, followed by a second surgery to his right hand in 2010. According to the Veteran, he continued to have problems with both wrists, although he stated his right hand was worse. The Veteran exhibited pain and loss of motion, he reported that his wrists throb and are continuously painful, and that he could not tie his shoes. As to joint symptoms, the examiner noted the left wrist worsened with cold weather or overuse, both wrists had deformities, they gave way, had instability, pain, stiffness, weakness, incoordination, had constant effusions, the left wrist had decreased speed of joint motion, and both had symptoms of inflammation to include warmth, swelling, and tenderness. Upon physical examination in July 2011, there was no weight bearing joint affected, no evidence of abnormal weight-bearing, and no inflammatory arthritis. With regard to the left wrist, the examiner noted crepitus, tenderness, pain at rest, weakness, abnormal motion, and guarding of movement. As to range of motion, the examiner found left dorsiflexion limited at zero to ten degrees, left palmer flexion limited at zero to ten degrees, left radial deviation limited at zero degrees, and left ulnar deviation limited at zero to ten degrees, and the examiner found there was objective evidence of pain with active motion on the left side. In regard to the right-side range of motion, the examiner noted dorsiflexion limited at zero to ten degrees, palmer flexion limited at zero degrees, radial deviation limited at ten degrees, ulnar deviation limited at ten degrees, and the examiner found there was objective evidence of pain with active motion on the right side. The examiner made additional findings of slight but significant ulnar deviation on the right wrist, both wrists were tender to touch in anatomical snuff box, there was tenderness on the dorsal side of the right wrist, and there was atrophy of muscles in both lower arms and wrists. The Veteran's February 2015 in-person examination reflected that the Veteran expressed experiencing chronic bilateral wrist and cramping of the hands, worse in the mornings. As reflected in the examination, the Veteran stated his wrists cramp up in flexion deformity. The examiner also documented a diagnosis of bilateral traumatic arthritis. Aggravating factors were noted to include pushing, pulling, and handgrip. As to left hand range of motion, the examiner documented initial plantar flexion at 60 degrees, dorsiflexion at 60 degrees, ulnar deviation at zero to 45 degrees, and radial deviation at zero to 20 degrees. As to right hand range of motion, the examiner documented initial plantar flexion at 45 degrees, dorsiflexion at 45 degrees, ulnar deviation at zero to 35 degrees, and radial deviation at zero to 20 degrees. The examiner documented no evidence of pain on weightbearing; however, pain was noted with range of motion in palmer flexion and dorsiflexion. The examiner also found localized tenderness related to both wrists. With repetitive use testing, as to left hand range of motion, the February 2015 VA examiner documented plantar flexion at 60 degrees, dorsiflexion at 60 degrees, ulnar deviation at zero to 35 degrees, and radial deviation at zero to 15 degrees. With repetitive use testing, as to right hand range of motion, the examiner documented plantar flexion at 45 degrees, dorsiflexion at 45 degrees, ulnar deviation at zero to 35 degrees, and radial deviation at zero to five degrees. The examiner indicated that the Veteran's pain significantly limited his functional ability with repeated use over a period of time. The described range of motion with pain related to his left hand was plantar flexion at 60 degrees, dorsiflexion at 60 degrees, ulnar deviation at zero to 35 degrees, and radial deviation at zero to 15 degrees. The described range of motion with pain related to his right hand was plantar flexion at 45 degrees, dorsiflexion at 45 degrees, ulnar deviation at 45 degrees, and radial deviation at 45 degrees. The described range of motion during flareups with pain related to his left hand was plantar flexion at 60 degrees, dorsiflexion at 60 degrees, ulnar deviation at zero to 35 degrees, and radial deviation at zero to 15 degrees. The described range of motion during flareups with pain related to his right hand was plantar flexion at 45 degrees, dorsiflexion at 45 degrees, ulnar deviation at zero to 35 degrees, and radial deviation at zero to five degrees. The examiner found the Veteran's strength to be normal for both wrists. As to ankylosis, the examiner noted no range of motion on palmer and dorsal flexion but noted the Veteran still had some movement on ulnar and radial deviation. According to the February 2015 VA examination report, in regard to functional impact, the examiner documented that due to the Veteran's condition he would not be able to push, pull, and hold over ten pounds on repetitive occasions with his wrists. Also, the examiner stated the Veteran would not be able to perform activities that demand palmer/dorsal wrist flexion. The examiner further opined that the Veteran would lose ten degrees of additional range of motion on left radial deviation, 15 degrees on right ulnar deviation, and five degrees on right radial deviation due to pain on use or during flareups. The Veteran appeared for an in-person VA examination in August 2021. As reflected in the examination report, the Veteran reported that his right wrist will give out if he lifts too much and his left wrist hurts with a pushing motion. The examiner noted right hand active range of motion for dorsiflexion as 45 degrees, palmer flexion as 45 degrees, ulnar deviation as 40 degrees, and radial deviation as 15 degrees. The examiner noted left hand active range of motion for dorsiflexion as 45 degrees, palmer flexion as 45 degrees, ulnar deviation as 40 degrees, and radial deviation as 15 degrees. The examiner found that passive range of motion for both wrists were the same as on active range of motion. The examiner found objective evidence of pain. In regard to additional loss of function or range of motion after three repetitions, the examiner found no additional loss with either wrist. The examiner stated that the Veteran's estimated range of motion in degrees after repeated use over time for the right wrist was dorsiflexion at 40 degrees, palmer flexion at 40 degrees, ulnar deviation at 30 degrees, and radial deviation at ten degrees. The examiner stated that the Veteran's estimated range of motion in degrees after repeated use over time for the left wrist was dorsiflexion at 40 degrees, palmer flexion at 40 degrees, ulnar deviation at 20 degrees, and radial deviation at 10 degrees. According to the examination, the Veteran denied flare-ups for either wrist. The examiner noted there was no ankylosis with either wrist. Here, the Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected residuals of his bilateral wrist fracture with the established criteria found in the rating schedule. Upon review, the Board finds that the Veteran's symptomatology attributable to his residuals of his bilateral wrist fracture is fully addressed by the rating criteria under DC 5215 as such clearly contemplates his limitations of motion. In particular, the Veteran's residuals of his bilateral wrist fracture are manifested by bilateral wrist pain, pain with pushing, swelling, stiffness in the morning, and the Veteran's wrist giving out with lifting. Consequently, as all such symptomatology is specifically contemplated by the DC under which such disability is rated, the Board finds that the schedular criteria is adequate to evaluate the Veteran's residuals of his bilateral wrist disability. Additionally, as noted in the introduction, an August 2021 rating decision afforded the Veteran separate ratings for his scars under Diagnostic Code 7804. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). As reflected in the February 2015 and August 2021 VA examinations, the Veteran does not have five or more scars that are unstable or painful. As such, the Veteran has already been awarded appropriate separate ratings for his scars, and no other residuals have been observed or reported. Based upon a review of the record, the Board finds that ratings in excess of 20 percent for the Veteran's residuals for his bilateral wrist fracture and in excess of 20 percent for his scars are not warranted, to include on an extra-schedular basis. Specifically, for the entire appeal period, such are manifested by painful and limited motion, without ankylosis. Further, for the entire appeal period, the Veteran does not have five or more scars that are unstable or painful warranting a higher evaluation. Moreover, the Board notes that as of January 8, 2018, VA amended 38 C.F.R. § 3.321(b)(1) so as to preclude extra-schedular consideration based on the combined effects of multiple service-connected disabilities. Such amendment applies to all applications for benefits that are received by VA on or after January 8, 2018 or that were pending before VA, the Court, or the Federal Circuit on that date, which includes the instant appeal. 82 Fed. Reg. 57830. Consequently, a rating in excess of 40 percent for residuals of bilateral wrist fracture and painful scarring due to the collective impact of all service-connected disabilities is precluded by law, and such aspect of the claim must be denied. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected residuals of his bilateral wrist fracture and scars. In this regard, the Board finds that the rating schedule is adequate to evaluate his disability picture. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Thus, the Board concludes that an extra-schedular rating is not warranted. Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In sum, the Board finds that entitlement to a rating in excess of 20 percent for residuals of bilateral wrist fracture and a rating in excess of 20 percent for scars, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3, 4.7. 2. Entitlement to a TDIU on an extra-schedular basis. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and 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). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay and profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility that when the same claimant worked before." In other words, "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration Regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In regard to determining whether a protected work environment exists, the Court has indicated that factors to consider may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Additionally, in Judge Lance's concurring opinion, it was noted that where a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Id. at 396. 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, when 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); 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). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran's claim for a TDIU has been raised in connection with his claim for a higher rating for his bilateral wrist fracture residuals, which was received on June 22, 2011. As noted in the August 2011 rating decision, an effective date of June 9, 2007, for service connection for bilateral wrist fracture residuals was established. Consequently, the Veteran's claim stems from the same date. See Rice, supra. The Board notes, per an April 2012 statement in support of claim, that the Veteran's representative indicated the Veteran was not filing for a TDIU at the time, and rather was seeking a temporary 100 percent evaluation due to bilateral wrist physical therapy. However, as the Veteran asserted during a July 2011 VA examination and in his August 2011 Notice of Disagreement that he is unable to do any type of work due to his bilateral wrists, a claim for TDIU has been raised by the record. As an initial matter, the Veteran is only service-connected for residuals of bilateral wrist fracture, rated as 20 percent disabling, and painful scars associated with the bilateral wrist fractures, rated as 20 percent disabling. Thus, the Veteran does not meet the schedular threshold for consideration of a TDIU. Thus, a TDIU entitlement would have to be determined on an extraschedular basis. According to the Veteran's provider in March 2010, the Veteran has been unable to work due to bilateral scaphoid fracture non-unions with surgery with bone graft to the left wrist in October 2009. The provider indicated he would remain in a cast for his left wrist for another month with surgical planning for his right wrist procedure. The Board notes that this timeframe corresponds with the Veteran's temporary 100 percent post-surgery evaluation related to his left wrist. Also, a June 2011 medical record reflects the Veteran was unable to work as a firefighter from May 1, 2011, to July 1, 2011, due to medical recovery from wrist surgery. This record corresponds to the Veteran's temporary 100 percent rating related to his right wrist surgery recovery period. In July 2011, the Veteran underwent a VA examination related to his increased rating claim for his bilateral wrist disability. Per the examination, the Veteran sustained an injury to both wrists in 2005 and had surgery for nonunion fractures eight months afterwards. The Veteran underwent the same surgery in 2009, using the same incision site for his left wrist, and in 2010 he underwent the same operation for his right wrist. As reflected in the examination, the Veteran had two non-painful scars on his left wrist, measuring 7 x 0.5 centimeters (cm) and 5 x 0.5 cm. The Veteran had one non-painful scar on his right wrist measuring 7 x 0.5 cm. The examination demonstrated abnormal range of motion, tenderness to both wrists, and muscle atrophy in both wrists. Per the July 2011 examination, the Veteran's usual employment was as a medic and firefighter; however, the examiner noted the Veteran was not currently employed. Per the examination, the Veteran was unable to perform his occupation at all because of pain and limited range of motion. He reportedly used the chainsaw and performed smoke jumping in the past. He reportedly could no longer do those things, stating he was unable to work because of pain and loss of range of motion in his wrists. The Veteran reported his bilateral wrist disability severely impacted his ability to do chores, participate in sports and recreation; moderately impacted his ability to exercise, dress and drive; and mildly impacted his ability to shop, travel, and groom. According to the Veteran's testimony as to employment, he was extremely limited. The Veteran testified he was working on a part-time basis; he answered phones and folded tee shirts at a retail store. The Veteran reported he had to reclassify several times, and he used to work in the archery department. The Veteran described that he now could not hold a bow or any type of weight. The Veteran testified he started out being able to do some work, but basically has been restricted to folding tee shirts and pouring drinks. Per his testimony, he folds one shirt at a time, and after 30-45 minutes he has to take break due to the throbbing; he reportedly drops things. Also, the Veteran testified he cannot drive for more than 30 minutes at a time. He testified his wrists do not bend at all and if/when they do, he is forced to put them in a position where if he needs to bear any weight they collapse immediately. As reflected in his testimony, since 2005, he has experienced daily pain, swelling, and throbbing, and his wrists were basically useless at this point. He also indicated that cold temperatures make them worse. The Veteran testified his scars are painful and numb. As reflected in the September 2012 Remand, among the need to further develop the case, the Board found the July 2011 VA examination to be inadequate because of conflicting findings regarding ankylosis and because the examiner's opinion concerning the effects of the Veteran's wrist disability on his occupation only took into consideration his usual occupation rather than all occupations. Per the September 2012 Remand, the Board, in pertinent part, directed that a notice letter be sent to the Veteran and his representative related to his entitlement to a TDIU due to his bilateral wrist disorder; that his VA treatment records from February 2011 to the present be obtained and associated with his file; that the Veteran's claims file and E-Folder be reviewed; that the Veteran be afforded a VA examination related to his bilateral wrist disorder; and for the VA examiner to offer an opinion as to whether the Veteran is unable to secure and follow substantially gainful employment or is unemployable due to his wrists. In accordance with the September 2012 Remand, following several attempts to locate him, the Veteran was afforded a VA examination in February 2015. According to the February 2015 VA examination, the examiner opined that the Veteran's service-connected residuals of bilateral wrist fracture did impact him functionally. As reflected in the examination, the Veteran would not be able to pull, push, hold over ten pounds on repetitive occasions with his wrists, and/or perform activities that demand palmer/dorsal wrist flexion. Per the December 2015 Remand, the Board, in pertinent part, found that a referral for extra-schedular consideration for wrists and a TDIU was warranted. As reflected in the December 2015 Remand, the Board directed the RO to notify the Veteran that he could submit lay statements in support of his claim, directed that upon completion of additional development that the Veteran's claim for increased rating for his service-connected bilateral fracture residuals and claim for a TDIU be referred to the Director for a determination as to whether the assignment of an extra-schedular rating was warranted under 38 C.F.R. § 3.321(b)(1), and if the appeal was denied, the Veteran should be furnished with a SSOC. Per an April 2016 administrative decision, the Director determined that a TDIU on an extra-schedular basis was not warranted. The Director determined the medical evidence for the Veteran's service-connected conditions did not show that the Veteran would be unemployable in all environments, including a sedentary one, due solely to his service-connected disabilities. Nonetheless, the Board must now undertake its own de novo review of the claim. The Board notes in his August 2016 IHP, the Veteran's representative asserted the May 2016 SSOC required review, and challenged the administrative decision issued by the Director in April 2016. The Veteran's representative asserted the administrative decision was inadequate because it did not include a discussion of the Veteran's previous occupational training, education level, or occupational opportunities available within the Veteran's local community. The representative further asserted that although the administrative decision indicated the Veteran was not precluded from all sedentary work, it failed to identify actual sedentary employment that the Veteran is capable of securing with his occupational and scholastic background within his community. Moreover, the representative referenced the July 2011 VA examination wherein the examiner opined that the Veteran's bilateral wrist disorder had significant effects on his usual occupations of a medic and firefighter. Per the April 2017 Remand, the Veteran had not returned a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). However, the Board observed the Veteran was homeless contemporaneous in time to when the VA sent him notice for substantiating his TDIU claim. Also, as reflected in the Remand, although the Director determined, in April 2016, that the Veteran was able to employable in all environments including a sedentary one, the Director did not address the Veteran's ability to perform substantially gainful employment consistent with his level of education, special training, and previous work experience. The Board cited to the Court's prior holding that an opinion from the Director regarding extra-schedular consideration must be supported by an adequate reasons and bases that allows for judicial review. Kuppamala v. McDonald, 27 Vet. App. 447, 455-456 (2015). As such, in pertinent part, the Board directed the Veteran be provided with a VA Form 21-8940 for completion and requested an opinion as to whether the Veteran was able to perform substantially gainful employment consistent with his level of education, special training, and previous work experience with his service-connected bilateral wrist fracture residuals. Per the August 2017 SSOC, the Veteran was notified that his VA Form 21-8940 had been provided and had not yet been returned. The Board observes that the Veteran's representative in his October 2017 IHP cited to the August 2017 SSOC and asserted that the RO's findings contradicted the previous examiner's findings that the Veteran suffers significant effects on his usual employment without citing to medical documentation or a doctor to support those findings. The Board further observes that, although the Veteran's representative referenced the returned mail within the Veteran's file, the representative did not address the VA-Form 21-8940, which was identified in the August 2017 SSOC to be outstanding. The Board observes, in March 2018, a credit check was run regarding the Veteran in attempt to locate his addresses. Also, the March 2018 Remand was sent to the Veteran that same month at the address listed on the VA Form 21-4502; however, such mailing was returned as undeliverable. Also, in an April 2018 email, it was noted that the Veteran was currently homeless and that his address listed on the VA Form 21-4502 was different from the one listed in some of the Veteran's CAPRI records. In April 2018, in accordance with the March 2018 Remand, the documents identified in the March 2018 Remand as undelivered were reissued to the Veteran at the address provided in the VA Form 21-4502, which was received in August 2017. However, such mailing was returned as undeliverable in June 2018. Further, in May 2018, the March 2018 Remand was reissued to the Veteran at different address in Seattle; this mailing was also returned as undeliverable. In July 2018, correspondence was sent to the Veteran at another address in Los Angeles advising him of the documents previously sent to him, to include those identified in the March 2018 Remand, which were returned as undeliverable. The Veteran was advised that if he received this correspondence, to please call the number in order to provide accurate information. A separate letter was sent to the Veteran at this same Los Angeles address in July 2018 requesting that he return the enclosed VA Form 21-4142a, VA Form 21-4138, and VA Form 21-4142. There is no indication in the record that either of these mailings were returned as undeliverable. In October 2018, an attempt to contact the Veteran via telephone was made to determine why he did not appear for an examination scheduled for that month. The phone number was no longer in service; a review of a CAPRI record reflected that the Veteran was scheduled for an interview for admission to the West LA VAMC Domiciliary program later that month. As such, it was determined that a new examination would be scheduled after following the result of such program admission. In December 2018, a SSOC was sent to the Veteran at the previously used Los Angeles address. In December 2018, the VA received a signed waiver from the Veteran's representative confirming receipt of the December 2018 SSOC and waiving the 30-day waiting period. The Board observes in his January 2019 IHP, the Veteran's representative challenged the December 2018 SSOC based on an inadequate development of the Veteran's claims. The representative asserted the Veteran remained unemployed and homeless and was currently without a phone. Within the January 2019 IHP, the representative requested that the ARC contact and work with the Veteran and his VA caseworker at the West LA VAMC. In the October 2019 Remand, the Board directed that since the Veteran was homeless, the RO must comply with the notice procedures outlined in 38 C.F.R. § 1.710(d); that all documents of record returned as undeliverable since July 2011 be re-issued; that the Veteran be examined for a VA examination; and that the VA examiner offer an opinion as to the severity and functional impact of the Veteran's bilateral wrist conditions. In November 2019, correspondence was sent to the Veteran at a newly discovered Bronx address advising him that a September 2019 notification letter had been returned as undeliverable. The Veteran was asked if he received the mailing, to contact the listed phone number to provide correct contact information. Separate correspondence was sent to the Veteran at the Bronx address to reissue the documents returned as undeliverable in accordance with the October 2019 Remand. The Veteran's representative in his March 2020 IHP cited to the February 2020 SSOC. In the IHP, the Veteran's representative asserted based on the Veteran's homelessness that the claim required further development. Specifically, the representative referenced the prior request in the January 2019 IHP that the Veteran be contacted through his social worker at the West LA VAMC. The representative stated there was no documentation or mention that the Veteran's social worker was ever contacted about the Veteran, and instead there are returned mailings in his electronic record. In February 2020, VA received notification that mailing sent to the Veteran at the Bronx address had been returned as undeliverable. As reflected in the April 2020 Remand, the Board directed, in pertinent part, that the Veteran's VA treatments records for the period of March 2020 to present be obtained; that the Veteran's most recent VA social worker as reflected by his VA treatment records be contacted to locate the Veteran in order to provide him with important correspondence and to schedule him for a VA examination; that if the social worker was unable to provide contact information for the Veteran, the procedures as set forth by 38 C.F.R. § 1.710(d) to provide all documents returned as deliverable since July 2011 were followed; and to schedule the Veteran for a VA examination. Under 38 C.F.R. § 1.710(d), if a claimant fails or refuses to provide a current mailing address to the VA, all correspondence and any checks for benefits to which the claimant is entitled will be delivered to the Agent Cashier at the RO which adjudicated or is adjudicating the claim in the case of compensation, pension, or survivors' benefits, to the Agent Cashier of the VA facility closest to the educational institution or training establishment attended by a claimant in the case of education benefits, or to the Agent Cashier of any other VA facility deemed by the Agency to be appropriate under the circumstances of the particular case. As reflected in a June 2020 Report of General Information (VA Form 27-0820), a social worker, J.E., at the Brooklyn campus, a social worker, B.J., and primary care nurse, J.B., at VAMC NY Harbour campus were contacted in order to attempt to locate a valid address for the Veteran. Also, according to the June 2020 VA Form 27-0820 and a June 2020 subsequent development letter, the procedures as set forth by 38 C.F.R. § 1.710(d) were followed in compliance with the April 2020 Remand. Also, in accordance with the April 2020 Remand, the Veteran was afforded a new VA examination. As such, the Board finds that there has been substantial compliance with the April 2020 Remand. Moreover, the Board has thoroughly reviewed the addresses as provided by the Veteran along with the mailed correspondence and return notices. The Board notes that there is a "presumption of regularity" under which it is presumed that Government officials have properly discharged their official duties. See Butler v. Principi, 244 F.3d 1337, 1340 (2001). Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)); see also Schoolman v. West, 12 Vet. App. 307, 310 (1999) ("'clear evidence to the contrary' is required to rebut the presumption of regularity, i.e., the presumption that the notice was sent in the regular course of government action."). In regard to correspondence in the file that was sent to the Veteran, and which did not come back with a returned notification, the Board accordingly must presume that the Veteran received such documents. Therefore, the Board is unable to find clear evidence indicating an irregularity in this case sufficient to accept the Veteran's contention that he did not receive all important documentation relating to his case and/or have adequate opportunity to develop his claims. The Board finds no clear evidence sufficient to rebut the presumption of regularity. Turning to the outstanding requests, the evidence is void of a completed VA Form 21-8940, VA Form 21-4142a, and a VA Form 21-4142. The Veteran was requested to submit a completed VA Form 21-8940, VA Form 21-4142a, and VA Form 21-4142, and was afforded multiple opportunities to do so during the pendency of the appeal; however, he failed to provide such evidence. Thus, any favorable information in such documents or reports cannot be considered by the Board in its decision. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("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."). In this regard, it his burden to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). Consequently, the Board will adjudicate the Veteran's claim based on the available evidence of record. 38 C.F.R. § 3.655. Although the Veteran did not provide the requested VA Forms, he appeared for an in-person VA examination in August 2021 related to his bilateral wrist disabilities. As part of that examination, the VA examiner reviewed the Veteran's claims file. As reflected in the August 2021 Wrist Disability Benefits Questionnaire (DBQ), the examiner interviewed the Veteran and documented the onset of the Veteran's wrist disability in 2004 while in service. According to the August 2021 Wrist DBQ, the Veteran reported experiencing increased pain and difficulty with activities of daily living due to his wrist within the last year. The Veteran further reported if he hits or overuses his wrists, it takes him weeks to recover. As reflected in the Wrist DBQ, the Veteran's primary care provider and orthopedic provider were following his care, and he received wrist braces which he wore daily. The examiner documented the Veteran's current symptoms to consist of bilateral wrist pain, pain with pushing, swelling, stiffness in the morning, and the Veteran's wrist giving out with lifting. The examiner opined the Veteran's service-connected bilateral wrist disability did impact the Veteran's ability to perform any type of occupational task. More specifically, the examiner noted the Veteran's prior occupation was a residential aide, and he missed zero to one days of work in the past 12 months. The examination reflected the Veteran had supervisory roles due to his inability to lift at work related to his bilateral wrist fracture with scar and residuals. Further, a separate Scars DBQ from August 2021 reflected the VA examiner's opinion that the Veteran's scars did not impact his ability to work. In his October 2021 IHP, the Veteran through his representative contended the August 2021 VA examination was contradictory. Specifically, the representative referenced the increased pain and difficulty with activities of daily living due to the Veteran's wrist within the last year, which required weeks to recover if the Veteran hit or overused his wrists, and reiterated that the Veteran was followed by his primary care provider/orthopedic at Manhattan VA. In addition, he received bilateral wrist braces which he wore daily. The representative asserted that the Veteran's current symptoms were documented as bilateral wrist pain with pushing, swelling, and stiffness in the morning and that his wrists give out with lifting. The Veteran's representative also referenced that the examiner did not find the Veteran suffered flaring episodes with functional loss. The Board observes that although the Veteran did not provide a completed VA Form 21-8940, a vocational rehabilitation application from February 2011 is in the record which provides at least some of the Veteran's prior education and employment history, albeit dated. Per the February 2011 vocational rehabilitation application, the Veteran had applied for vocational rehabilitation based on his broken wrists with hardware. The stated rehabilitation plan involved the Veteran attending school from October 2011 through May 2017 to attain a bachelor's degree in Physical Education and a Master of Arts Degree in teaching/education. Based on an aptitude test, the Veteran was found to have a positive learning ability at or above high school. According to the Employment Handicap worksheet completed in March 2011, the Veteran has a high school diploma. The Veteran was found to have a serious employment handicap based on the severity of his disabling conditions, alcohol/substance abuse, chronic pain, and lack of education/training for suitable employment, among other factors. However, the vocation rehabilitation counselor found that achievement of a vocational goal was feasible. The Veteran's prior employment included seasonal archery equipment sales/repair, firefighter technician/emergency medical technician, and terminal air liaison with the United States Air Force. When asked about his disability and limitations, the Veteran indicated there was nothing he could not overcome. The Veteran reported in the VA Form 28-1902w that some of his disabilities were improving; however, he was currently experiencing pain, discomfort, and loss of full use. Per a closure statement dated November 2015 and a January 2016 notification letter, the Veteran's vocational rehabilitation plan was closed because he did not actively participate in the vocation rehabilitation program, despite efforts made to contact him. Upon review, the Board finds the aforementioned probative evidence does not show the Veteran's service-connected disabilities were of sufficient severity so as to render him incapable of performing the physical and mental acts required by employment consistent with his education and work history during the appeal period. In this regard, the Board affords great probative weight to the VA examiners who examined the Veteran during the relevant period, considered the full evidence of record, to include the Veteran's lay statements, educational background, and work history, and clearly articulated how the Veteran's service-connected disability impacted his ability to work. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this regard, while the Veteran would be limited in performing occupational activities as a residential aide, medic, or firefighter, he is not precluded from other work. Notably, his bilateral wrist disability, at its worst, only precludes him from pulling, pushing, holding over ten pounds on repetitive occasions with his wrists, and/or performing activities that demand palmer/dorsal wrist flexion. In this regard, while the Veteran may have difficulty, or be precluded from, performing the physical acts associated with some positions, there is no indication that he would be unable to perform the non-physical aspects of a position within such industries or another similar position outside of being a medic, firefighter, or a residential aide. (Continued on the next page) Notably, the question of a TDIU is a legal one. Considering the functional impact of the Veteran's service-connected disabilities described above, the Board finds he is not precluded from securing or following a substantially gainful occupation despite the limitations associated with such disabilities. Therefore, based on the foregoing, the Board finds that the limitations associated with the Veteran's service-connected disabilities, either singularly or in combination, do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In sum, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a TDIU is not warranted on an extra-schedular basis. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.