Citation Nr: 21007275 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-13 069 DATE: February 9, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right upper extremity (claimed as right arm condition/pain running up right arm) as secondary to service-connected right ring finger 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. The Veteran’s service-connected right ring finger disability less likely than not caused or aggravated his right upper extremity peripheral neuropathy. 2. The Veteran does not meet the schedular criteria for a TDIU at any point during the appeal period and referral for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to service-connected right ring finger disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1972 to February 1974. He testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in October 2018. A transcript of the hearing is of record. 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to service-connected right ring finger disability. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). An April 2017 VA examination report confirms a diagnosis of right upper extremity neuropathy. The examination report documents that the Veteran experiences mild intermittent pain, mild paresthesias, and mild numbness as a result of his peripheral neuropathy. Therefore, the first element of service connection has been met. The Veteran’s service treatment records do not document any complaints, treatment, or diagnoses of right upper extremity peripheral neuropathy. Indeed, the Veteran himself has not contended as much. Instead, he contends that his right upper extremity peripheral neuropathy is related to his service-connected right ring finger tendon repair injury. Thus, the second element of service connection has also been met. The question before the Board is therefore whether there is a so-called “nexus” between the Veteran’s service-connected right ring finger disability and his right upper extremity peripheral neuropathy. The weight of the evidence weighs against the Veteran’s claim. The Veteran was afforded a VA examination for his peripheral neuropathy in April 2017. The examiner opined that the Veteran’s peripheral neuropathy was less likely than not caused by his service-connected right ring finger disability. As rationale, the examiner stated, “on exam, the symptoms of paresthesias described does not involve right finger. Symptoms likely related to HIV which can cause neuropathy.” In May 2019, the Board determined the examination report was incomplete as the Veteran contended that it was factually inaccurate that he did not experience numbness going from his right finger up his arm. Further, the examiner did not address whether the Veteran’s peripheral neuropathy was aggravated by his service-connected right ring finger disability. As a result, additional VA medical opinion was obtained in July 2019. After performing an additional in-person examination and reviewing the entire claims file, the examiner opined that the Veteran’s right upper extremity peripheral neuropathy was less likely than not caused by his service-connected right ring finger disability. In support of the conclusion, the examiner stated: The Veteran has been diagnosed with and is treated for positive HIV status. The Veteran remains on antiviral treatment which is a combination of three antiviral medications in one pill. Antiviral medications have a significant case effect of peripheral neuropathy. Although viral load is undetected, the CD4 is at times less than 500 cells/UL; the condition is considered chronic and/but controlled with antiviral medication. CPRS shows routine [follow-up] with infectious disease clinic with/and testing for CD4 count and viral load at least annually. Also, the Vitamin D levels are low, in fact significantly low at one time at 8 ng/ml, which can cause bone pain. Degenerative changes/arthritis is a condition of wear and tear over time which affects the interphalangeal joints of all fingers of right hand per X-ray evidence in 1995, more than 20 years post discharge from service. Although the July 2019 VA examiner addressed the cause of the Veteran’s right upper extremity radiculopathy, in October 2020, the Board remanded the Veteran’s claim for further development. Specifically, the Board sought additional VA medical opinion addressing whether the Veteran’s right ring finger disability aggravated his right upper extremity peripheral neuropathy. Such opinion was obtained in November 2020. After reviewing the entire claims file, the examiner opined that the Veteran’s right upper extremity peripheral neuropathy was less likely than not aggravated by his service-connected right ring finger disability. As rationale, the examiner explained: The peripheral nerves are like tree branches which eventually divide to form smaller branches throughout the upper arm, forearm and hand. It is plausible the right finger injury could have caused trauma to a nerve in the finger/hand, however, the symptoms are at or below the damaged nerve for the finger/hand, and would not cause neurological symptoms in the other fingers of the hand as well as radiate upward toward the elbow. (emphasis added). The Board finds the July 2019 and November 2020 VA examination reports, when taken together, highly probative. The examiner considered the Veteran’s entire medical history and provided a clear conclusion with supporting rationale. The examiners explained that the Veteran’s right upper extremity peripheral neuropathy is more likely than not caused by his HIV treatment and that his right ring finger does not aggravate his upper extremity peripheral neuropathy as the symptoms are at or below the damaged nerve for the finger/hand. Essentially, the VA examiners found that the symptoms the Veteran experiences are wholly separate from his right finger injury and the nerves potentially impacted by such injury. The Veteran has not submitted a competent medical opinion to contradict the VA examination reports of record. The Board acknowledges the lay statements as well as contentions put forth by the Veteran. However, he has not demonstrated that he has the necessary medical expertise to provide an opinion as to the cause of his peripheral neuropathy. Instead, the Board affords most probative weight to the VA medical opinions of record as the Veteran had the opportunity to explain his symptoms to the examiner and the examiners utilized his lay statements in providing the medical opinions rendered. The Board anecdotally notes that the Veteran’s attorney has attempted to call into question the competency of the April 2017 VA examiner. See April 2018 Appellate Brief. The Board, however, has not relied on the April 2017 VA examination report in rendering a decision on appeal. See Francway v. Wilkie, 930 F.3d 1377 (2019). The July 2019 VA examiner was a Nurse Practitioner and the November 2020 VA examiner was a PA-C. The Veteran’s attorney has not advanced specific argument as to why these examiners are not competent. Id. (finding that a Veteran is required to challenge a VA examiner’s competence in the first instance). Therefore, the Board need not address the competency of the examiners further. In sum, based on a review of the foregoing evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a TDIU. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a). Alternatively, if a claimant is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a), the rating authority should refer the matter to the director of the Compensation and Pension Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). The veteran is not required to show 100 percent unemployability. The question is whether he or she is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Whether the veteran can actually find employment is not determinative, as the focus of the inquiry is on “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). However, the Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). To qualify for a schedular TDIU, if there are two or more service-connected disabilities, at least one shall be rated at 40 percent or more, and there shall be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered to be substantially gainful employment. Initially, the Board notes that the Veteran has submitted tax documents indicating that his income has been below the poverty line from Providence Home, which is a supported living facility. 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. Prior to August 13, 2016, the Veteran was service-connected for his right ring finger only, which was rated as noncompensable. From August 13, 2016 to September 9, 2016, he was service-connected for his right ring finger, rated as noncompensable; a painful scar, rated as 10 percent disabling; and another noncompensable scar. Beginning September 9, 2016, the Veteran has been service-connected for PTSD, rated as 50 percent disabling; painful scar, rated as 10 percent disabling; favorable ankylosis of the right ring finger, rated as noncompensable; and a separate scar, rated as noncompensable. His total rating prior to August 13, 2016, was noncompensable. His total rating from August 13, 2016 to September 9, 2015, was 10 percent. His current total rating is 60 percent. Therefore, he has not met the schedular criteria for TDIU at any point during the appeal period. Although the Veteran does not meet the scheduler criteria for consideration of TDIU, the Board must also consider whether referral for extraschedular consideration is warranted. Under the extraschedular provision of 38 C.F.R. § 4.16(b), a claimant must show that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in order to warrant a referral to the Director, Compensation Service, for extraschedular consideration. The record indicates that the Veteran is in receipt of a GED (received in 2013) and has experience in masonry, construction, general labor, and cooking. His work experience has been almost exclusively physical labor. The Veteran’s attorney contends that “among other things the submitted 1/15/2019 Vocational Assessment which discusses the extraschedular consideration of TDIU and how it is met in this case” warrants referral of the Veteran’s claim to the Direction of Compensation Service for extraschedular consideration. The Board disagrees. The record shows that the Veteran has applied for Social Security Benefits. Under “allegations of impairments” the Social Security records state: The individual filed for initial claim for disability on 02/05/2015 due to the following illnesses, injures or conditions: [knee] arthritis, glaucoma, problem with right hand (not finger). Under the “PRT- Additional Explanation,” the report states “60 yo/M w GED and current work as a cook alleging only physical conditions and limitations . . . His ADLs are depicted as being within normal limits for mental . . . His symptoms and mental impairment is indicated as being mild. No severity with memory was found. The records do not mention any impairments caused by his service-connected PTSD. Indeed, the records contain documents filled out by the Veteran himself indicating “lifting, squatting, bending, standing, reaching, walking, sitting, kneeling and stair climbing I have to be careful because my knees will jump out . . . [I’m] losing my eyesight so I can’t see as good as I used to.” The Veteran also reported helping others who “work in the yard” and being a point person for others at Providence to ask questions. A March 2017 VA examination report confirms that the Veteran was working as a cook at Providence Homes but also indicates that the Veteran had difficulty in establishing and maintaining effective work and social relationships as well as difficulty in adapting to stressful circumstances, including work or a worklike setting. No inability to maintain relationships was noted. Regarding the Veteran’s right hand, on VA examination in July 2019, the examiner noted the functional from the Veteran’s service-connected disability included “weakness and limited movement (flexion) of right 4th/ring finger.” Although the Veteran reported persistent numbness of “all fingers going up right arm to elbow,” this symptomatology was attributed to the Veteran’s non-service connected peripheral neuropathy. VA treatment records from December 2016 document that the Veteran reported his knees and right hand (peripheral neuropathy) being the reason he was unable to secure and follow substantially gainful employment. The Board acknowledges the Vocational Assessment submitted by the Veteran’s attorney in January 2019. The Board notes that the question of employability is ultimately one for the fact finder to decide. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, although the Board has considered this report, it does not find it probative when weighed against the other evidence of record. The January 2019 private examiner opined that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected PTSD since at least February 2013. First, the Board notes that the Veteran was not service-connected for PTSD until September 9, 2016. The Board has denied the Veteran’s claim for an earlier effective date for the grant of service connection for PTSD. Therefore, prior to September 9, 2016, the opinion is not probative. Prior to September 9, 2016, the evidence of record does not show that the Veteran’s right ring finger would cause him to be unable to secure and follow substantially gainful employment such that referral is warranted. Instead, the Veteran’s SSA records clearly document that he was alleging other non-service connected physical impairments were the cause of his unemployability. He specifically stated it was his glaucoma, HIV, and knees. To the extent he stated his right hand also impaired his ability to work, the Board again notes the distinction between the Veteran’ service-connected right ring finger and his whole hand, peripheral neuropathy. The evidence shows that the Veteran’s whole hand is not impacted by his service-connected right ring finger and instead it is his peripheral neuropathy that causes weakness and pain his right hand. As to the period from September 9, 2016, the Board still does not find the private opinion probative. Specifically, the report merely lists the Veteran’s PTSD symptoms but does not provide any reasoning why these symptoms would cause the Veteran to be unemployable as a result. In the interview portion of the examination report, the examiner noted “[the Veteran] discussed that he had difficulty holding onto jobs due to his difficulties working with coworkers and supervisors and keeping up with his job tasks and duties and he frequently quit jobs because he ‘just could not work.’” The examiner also noted prior psychiatric hospitalizations. The March 2017 VA examination report also documents these hospitalizations, however, these occurred prior to the appeal period. As to the Veteran’s ability to interact with others, the Board again notes that when given the opportunity to discuss the disabilities that precluded him from work on his Social Security documents, the Veteran did not mention any psychiatric limitations. Indeed, he endorsed being able to work with people in the yard and being a point person for people to ask questions. Although the March 2017 VA examiner notes that the Veteran experiences disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, the report also notes that the Veteran received support and guidance through residents and workers in his living facility. The report specifically noted that the overall effects of the Veteran’s PTSD symptoms on work-related tasks of interpersonal relatedness were mild. Specifically, the examiner stated: The above symptoms impair the Veteran’s ability to work cooperatively and effectively with co-workers to a mild extent. The above symptoms impair the Veteran’s ability to work cooperative and effectively with supervisor to a mild extent. The above symptoms impair the Veteran’s ability to work cooperatively and effectively with the public to mild extent. Regarding the Veteran’s PTSD interfering with his ability to concentrate, his attention, memory, and problem-solving, the examiner opined that the impact was mild. Regarding symptoms that interfere with motivation and drive, the examiner stated: These symptoms impair the Veteran’s ability to maintain task persistence and pace to a mild extent. These symptoms impair the Veteran’s ability to arrive at work on time to a mild extent. These symptoms impair the Veteran’s ability to work a regular schedule without excessive absences to a mild extent. Although the examiner found in Criterion G that the Veteran’s PTSD symptoms described cause clinically distress or impairment in social, occupational, or other important areas of functioning, when given the opportunity to further clarify, the examiner stated that the effects of the Veteran’s PTSD on his occupational functioning was mild. This examination report is consistent with the Veteran’s VA treatment records to specifically include January 2017 records whereby the Veteran was noted to be working part-time as a brick mason and was considering maintenance supervision at an apartment complex. Both of those job duties require minimal social interaction. When considering the Veteran’s occupational history, the Board finds that jobs such as maintenance supervision would be consistent with his work experience. The Veteran’s VA treatment records, which are based on his lay statements, VA examination reports, and Social Security Records, which are also based on the Veteran’s lay statements, weigh heavily against the January 2019 private vocational assessment. The contemporaneously produced records from VA and SSA clearly document that the Veteran’s PTSD and right ring finger disability do not preclude him from substantially gainful employment. Instead, the Veteran himself has stated that it is his non-service-connected physical limitations. The Board does not dispute that the Veteran’s PTSD impacts his ability to work. A high rating 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). When considering all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities precluded him from securing and maintaining substantially gainful employment at any time during the appeal period. Therefore, referral for extraschedular consideration is not warranted and the Veteran’s claim for TDIU is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.