Citation Nr: 21008009 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-20 502 DATE: February 11, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right wrist disability, to include on an extra-schedular basis, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis, also is denied. FINDINGS OF FACT 1. The Veteran has some limitation of motion (“stiffness”) in his right wrist, including owing to his pain, and he has occasional swelling and is unable to carry over 50 pounds. 2. His right wrist disability is his only adjudicated service-connected disability, and it does not have a high enough rating to meet the schedular criteria for a TDIU. 3. The right wrist disability does not have symptoms or cause functional impairment not contemplated by the schedular rating criteria or preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for a rating in excess of 10 percent for the right wrist disability, including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC/Code) 5003-5215. 2. The criteria also are not met for entitlement to a TDIU on either a schedular or extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to October 1966. This appeal to the Board of Veterans’ Appeals (Board) is from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board – initially in July 2018, at which time the Board issued a decision determining the Veteran was not entitled to a rating higher than 10 percent for his right wrist disability. The Veteran timely appealed that July 2018 Board decision to the higher United States Court of Appeals for Veterans Claims (Veterans Court/CAVC). In February 2019, the parties filed a Joint Motion for Remand (JMR), which the Court granted in an Order that same month, vacating the Board’s decision and remanding this claim to the Board for further development and re-adjudication in compliance with directives specified. The JMR also directed VA to adjudicate a derivative claim for a TDIU since it had been raised by the record according to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009).   Accordingly, the Board remanded these claims back to the RO in September 2019 to comply with the terms of the JMR. This additional development especially included referring these claims to the Director of the Compensation Service or Under Secretary for Benefits for extra-schedular consideration under the special provisions of 38 C.F.R. § 3.321(b)(1) for the right ankle disability and 38 C.F.R. § 4.16(b) for the derivative TDIU claim. That directed development (referral) since has occurred, so there was compliance with this remand directive, certainly the acceptable substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Because, following that referral, it was determined that an extra-schedular rating and TDIU are not warranted, these claims are again before the Board. Increased Rating 1. Entitlement to a rating in excess of 10 percent for the right wrist disability, including on an extra-schedular basis The Veteran contends that he is entitled to a rating higher than 10 percent for his right wrist disability, including on an extra-schedular basis. His disability is characterized as “post-operative residuals of a fracture of the right wrist, carpal navicular with residual degenerative joint disease and a residual scar.” But, throughout this decision, for ease of discussion, the Board simply will refer to his disability more generally as a “right wrist disability”. The Veteran’s right wrist disability is rated under Diagnostic Code 5003-5215. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated DC represents degenerative arthritis (DC 5003) and limitation of motion of the wrist (DC 5215). The first thing worth pointing out is that the Veteran already has the highest possible schedular rating under DC 5215. Regardless of whether the joint involved is the major or minor joint, a 10 percent rating is the maximum permissible schedular rating under this DC and is warranted for either dorsiflexion limited to less than 15 degrees or palmar flexion limited to in line with the forearm. See 38 C.F.R. § 4.71a, DC 5215. At his June 2014 VA examination, the Veteran had right wrist palmar flexion to 30 degrees, so further than in line with his forearm, and dorsiflexion to 20 degrees. So, he did not have sufficient limitation of motion during that examination, in either direction (dorsiflexion or palmar flexion) to warrant the 10 percent rating he has under DC 5215. The 10 percent rating is to compensate the Veteran for the arthritis in his right wrist, even absent indication of a compensable level of limitation of motion. According to DC 5003, degenerative arthritis established by x-ray findings will be rated as follows when there is not a compensable limitation of motion: a 10 percent rating is warranted for x-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating is warranted for x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Here, there is no x-ray evidence of a joint other than the Veteran’s right wrist having degenerative arthritis. Further, there is not medical evidence that his right wrist disability causes incapacitating exacerbations. Thus, at most a 10 percent rating is warranted under DC 5003, and he already has this rating. The Board consequently turns to considering whether a higher rating is warranted, instead, on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1). During his June 2014 VA wrist examination, the Veteran reported pain that prevents him from writing letters and that was a partial contributor to his retirement from carpentry 14 months prior. He described flare-ups of the pain occurring daily when he was working, albeit less frequently since his retirement. Upon examination, he had right wrist palmar flexion to 30 degrees with pain starting at 30 degrees (so not until the endpoint), and dorsiflexion to 20 degrees with pain starting at 20 degrees (so also not until the endpoint). The examiner indicated the Veteran’s right wrist limitation of motion creates functional loss in that he has less movement than normal and pain on movement. Further, he reported that his right wrist disability precludes him from carrying objects over 50 pounds and writing letters. The examiner found no pain on palpation during that examination, no loss in muscle strength, and no ankylosis. The examiner observed a scar, which is considered in the Veteran’s current rating as he is service connected specifically for “post-operative residuals of a fracture of the right wrist, carpal navicular with residual degenerative joint disease and a residual scar.” The scar resultantly is not entitled to be separately compensated, such as under DCs 7800-7005, inasmuch as it was not symptomatic or causing any associated functional or other impairment. Additionally, the examiner found that the Veteran has a lateral limitation of motion in his right wrist. Specifically, a full range of lateral motion for a wrist is ulnar deviation to 45 degrees and radial deviation to 20 degrees. See 38 C.F.R. § 4.71, Plate I. The Veteran had ulnar deviation to 20 degrees and radial deviation to 10 degrees, so what amounted to a bit less than ½ of normal ulnar deviation and ½ of normal radial deviation. In March 2015, the Veteran submitted a handwritten statement in which he wrote that doctors have told him that his right wrist disability has worsened. However, a review of the actual VA treatment and examination records does not show that this assertion was recorded in the written record, i.e., reduced to writing to confirm that this is his doctor’s actual belief. Generally speaking, a claimant's account of what a doctor purportedly said, filtered as it is through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). In a May 2015 handwritten statement to VA, the Veteran stated that his right wrist disability is manifest by pain, swelling, and stiffness with limitation of motion. He reiterated this in a September 2015 handwritten letter. In December 2019, the Veteran submitted an additional handwritten letter stating that he refuses to undergo an additional VA examination for his right wrist even though he feels his condition has worsened. The duty to assist is not a one-way street. If he 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. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In accordance with agreement in the Court-granted JMR and subsequent Board remand, the Veteran’s claim was referred to the Director of Compensation Services in July 2020 to determine whether the Veteran’s right wrist disability warrants a rating higher than 10 percent on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1). In response to that July 2020 referral, the Director rendered an October 2020 advisory opinion concluding that an extra-schedular rating was not warranted for the Veteran’s right wrist disability. The Director concluded that the totality of evidence on record and RO submission indicated no support for the notion that the Veteran's right wrist disability constituted such an unusual or exceptional disability pattern to render application of the regular rating criteria as impractical. However, the Director's opinion is not a final determination on the matter. Rather, the Board must review all the evidence in rendering a final determination regarding whether the appellant is entitled to an extra-schedular rating. As the issue of extra-schedular consideration for the Veteran’s right wrist disability and derivative entitlement to a TDIU, also on an extra-schedular basis, were adjudicated in the first instance by the Director in October 2020, the Board is now free to review these matters de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). There is no restriction on the Board's ability to review the adjudication of an extra-schedular rating once the Director determines that an extra-schedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). See also Wages v. McDonald, 27 Vet. App. 233, 239 (2015) ("[T]he Director's decision is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence". The Board conducts a de novo review of the Director's decision.). More recently, however, on March 14, 2019, the Veterans Court (CAVC) also issued Ray v. Wilkie, 31 Vet. App. 58 (2019) – which, in part, addressed the effect of the Board's referral of a case for extra-schedular consideration when the Board later reviews the Director's decision not to award an extra-schedular disability rating. The Court held that the Board's determination to refer a case for extra-schedular consideration is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." Even more recently, on May 28, 2020, the CAVC issued Smiddy v. Wilkie, 32 Vet. App. 350 (2020). In Smiddy, the Court extended its holding in Ray regarding the initial decision of whether to refer the issue of an extra-schedular TDIU under 38 C.F.R. § 4.16(b) to the Director of Compensation Services to the initial decision of whether to refer the issue of an extra-schedular rating decision under 38 C.F.R. § 3.321(b)(1) to the Director. In other words, when the Board denies entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b), it must provide adequate reasons and bases for any factual determination that deviates from its earlier decision to remand the claim for referral to the Director of Compensation Service. Here, however, the September 2019 Board remand did not make factual findings when referring this appeal to the Director; rather, the September 2019 remand noted that the remand and referral to the Director of Compensation Services was pursuant to the JMR directive. Consideration of an extra-schedular rating, after a determination by the Director in the first instance, requires consideration of whether the schedular rating criteria adequately contemplate the Veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008).   The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Concerning the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings of pain, stiffness, and occasional swelling owing to his right wrist disability, with some limitation of motion and inability to carry over 50 pounds. Although DC 5215 does not specifically list his symptoms other than limitation of motion, DC 5003 requires that limitation of motion be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran’s symptoms of pain, swelling, and stiffness are reasonably similar to swelling, muscle spasm, and painful motion, which are listed expressly under DC 5003 as relevant considerations. Further, his limitation of motion, while not severe enough to warrant a compensable rating under DC 5215, is directly contemplated by this DC. Finally, he stated during his June 2014 VA examination that he has functional loss because his right wrist pain “prevents him from writing letters.” However, a review of the file shows that, during the pendency of this appeal, he has submitted at least 11 handwritten letters, each multiple pages long and many submitted after that June 2014 VA examination. Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints, particularly, the Rating Schedule specifically contemplates factors such as weakened movement, premature or excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. See also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. The Veteran’s stated symptoms, namely, limitation of motion, pain, stiffness, occasional swelling, and inability to carry objects over 50 pounds, are all contemplated by the schedular rating criteria. Because the Rating Schedule was purposely designed to compensate for such functional effects of his disability in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe his disability picture. TDIU 2. Entitlement to a TDIU, including on an extra-schedular basis The Veteran asserts that his service-connected disability, namely, his right wrist disability, renders him unemployable and, therefore, entitled to a TDIU. A TDIU may be assigned when a Veteran is unable to obtain or maintain a substantially gainful occupation as a result of service-connected disability(ies). If there is only one service-connected disability, this disability must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more with sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or singly bodily systems are treated as one, collective, disability. 38 C.F.R. § 4.16(a). But even if a Veteran does not meet these threshold minimum rating requirements, a TDIU still may be granted – albeit, instead, on an extra-schedular basis under the alternative special provisions of § 4.16(b) if it is shown he is unemployable because of service-connected disability(ies).   The Veteran has just one service-connected disability (his right wrist disability), which, as mentioned, is individually rated as 10-percent disabling, so he does not have sufficient rating for this disability to meet the § 4.16(a) schedular criteria for a TDIU. Consequently, this TDIU claim may be considered only instead under § 4.16(b). To reiterate, according to § 4.16(b), it is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled, even if they do not meet the § 4.16(a) rating requirements. In determining whether a Veteran is unemployable for VA compensation purposes, consideration may be given to his level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is employment "that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 4.16(a), 4.18. 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 also however may be held to exist on a facts-found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.18. A Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).   The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities, alone, are of sufficient severity to produce unemployability. The test of individual unemployability is whether a veteran, as a result of his or her service-connected disability, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his or her educational and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a). See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating, itself, is recognition that the impairment makes it difficult to obtain or keep employment. 38 C.F.R. §§ 4.1, 4.15. 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 July 2020, the Board did the directed referral to the Director of Compensation Services for consideration of entitlement to this benefit on an extra-schedular basis pursuant to the special provisions of § 4.156(b). But, in response, the Director rendered an October 2020 advisory opinion concluding that entitlement to a TDIU on an extra-schedular basis is not warranted. In explanation, the Director concluded that "the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disability prevented gainful employment.” The Director further stated that, while the Veteran’s right wrist disability could have functional impact and impair prolonged activities, there is no evidence of inability to perform sedentary employment owing to his service-connected right wrist disability. To reiterate, the Court has held that the Board's determination to refer a case for extraschedular consideration is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." See Ray, 31 Vet. App. at 58. Here, though, again, the September 2019 Board remand did not make factual findings when referring this claim to the Director, rather, the September 2019 remand noted that the remand and referral to the Director of Compensation Service was pursuant to the JMR directive. In Ray, the Court also explained that the term "substantially gainful employment" contains economic and noneconomic components; 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Turning now to the relevant evidence in this case at hand, the Veteran has stated that he believes his right wrist disability, alone, precludes him from obtaining and maintaining substantially gainful employment. At a December 2003 VA examination, the Veteran stated that his severe, constant wrist pain severely interfered with his work as a carpenter and construction worker because he is right-handed. That was prior to the period on appeal but shows he has long stated that his right wrist disability impacts his ability to work. In March 2014, the Veteran submitted a written statement noting he has trouble driving and using a hammer or screwdriver due to right wrist pain. However, he then stated that a higher disability rating would “. . .help me deal with the stress of it because I am retired and all this is a direct result of my service in the US Army.” But he then discussed other non-service-connected disabilities, including posttraumatic stress disorder (PTSD), flat feet, and high blood pressure. At the June 2014 VA examination, the Veteran reported that he had retired 14 months earlier, partly because he could not continue working as a carpenter or construction worker since his right wrist disability and the flare-ups of pain he experienced with use of this wrist prevented him to continuing to work. The Board highlights his own statement that only partially attributed his retirement to his right wrist disability. He further stated that his right wrist disability precluded him from completing sheet rock, painting, carrying heavy objects, and writing letters, and caused pain while writing letters. In November 2019, VA sent the Veteran a TDIU application (VA Form 21-8940). But, to date, he has not returned this completed application or submitted any information concerning his employment or retirement. To reiterate, the duty to assist is not a one-way street. If he 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, 1 Vet. App. at 19 In December 2019, the Veteran submitted a written letter to VA stating that he would not attend another VA examination to reassess the severity of his right wrist disability. This is his only service-connected disability and, thus, the evidence must show that his right wrist disability, alone, precludes him from obtaining or maintaining substantially gainful employment. Based on the evidence currently of record, the Board finds that the evidence of record does not support the notion that his right wrist disability precludes him from substantially gainful employment. While there is no disputing the Veteran's service-connected right wrist disability causes some functional impact in his ability to maintain gainful employment in the construction field, his service-connected disability alone does not preclude him from obtaining and maintaining other employment that could be considered substantially gainful versus just marginal in comparison. Other than stating he worked in construction, he has not provided VA with information concerning his employment, education, training, or circumstances of his retirement. In the March 2014 letter, he seemingly attributed his retirement to multiple disabilities, albeit inclusive of his right wrist disability, but also to non-service-connected PTSD, flat feet, and high blood pressure. Further, during his June 2014 VA examination, he attributed his retirement “in part” due to his right wrist – meaning he did not attribute his retirement wholly to his right wrist disability. Consequently, after reviewing the evidence, the Board agrees with the Director that entitlement to a TDIU on an extra-schedular basis is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.