Citation Nr: 21020848 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-24 720 DATE: April 8, 2021 ORDER Entitlement to an extraschedular rating for left wrist arthritis is denied. FINDING OF FACT The preponderance of the evidence shows that the adverse symptomatology caused by the Veteran’s left wrist arthritis is considered and contemplated by the rating criteria and it is not manifested by an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards at all times during the appeal. CONCLUSION OF LAW The criteria for an extraschedular rating for left wrist arthritis have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from May 1981 to February 1986. In October 2011, the Board of Veterans’ Appeal (Board), among other things, remanded some of the Veteran’s claims for further development. In July 2018 a Veterans’ Law Judge other than the undersigned issued a Board decision that, among other things, denied a rating in excess of 0 percent prior to November 23, 2011, and in excess of 10 percent thereafter for carpal tunnel syndrome of the left wrist and remanded the claim for a schedular rating in excess of 10 percent for left wrist arthritis. As to the claims for increased ratings for carpal tunnel syndrome of the left wrist, the Veteran appealed the July 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent October 2019 decision by Judge Bartley, the Court vacated the Board’s July 2018 decision to the extent that it denied claims for increased ratings for carpal tunnel syndrome of the left wrist. In July 2020 the Board issued another decision that granted the Veteran a 20 percent for carpal tunnel syndrome of the left wrist at all times during the appeal, denied a schedular rating in excess of 10 percent for left wrist arthritis, and remanded the claim for an extraschedular rating for left wrist arthritis. Given the above history, the Board finds that the only issue remaining for it to adjudicate is the claim for an extraschedular rating for left wrist arthritis. In this regard, the Board finds that the post-Remand development addressed the concerns raised by the Board remand because while the claim was in Remand status the regional office (RO) in October 2020 referred it to the Director of Compensation Service for consideration under 38C.F.R. § 3.321(b)(1) and in December 2020 the Director replied. Lastly, the Board finds that the appeal does not raise a claim for a total rating based on individual unemployability (TDIU) because the record shows that the Veteran is gainfully employed and she has never asserted otherwise. Entitlement to an extraschedular rating for left wrist arthritis The Veteran’s representative in its’ June 2020 Brief contends that the service-connected left wrist arthritis warrants an extraschedular rating under 38C.F.R. §3.321(b)(1) because it greatly impacts her ability to function normally and therefore she is not adequately compensated for under schedular rating criteria. The Court has held that the determination of whether an appellant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service (“Director”). See Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. The requirement of an exceptional disability picture means that initially there must be a comparison between the level of severity and symptomatology of the appellant’s service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the criteria reasonably describe the appellant’s disability level and symptomatology, then the appellant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. Id. If the criteria do not reasonably describe the appellant’s disability level and symptomatology, a determination must be made whether the appellant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). In this regard, “[t]he governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b)(1); Shipwash v. Brown, 8 Vet. App. 218 (1995). (Emphasis Added). Furthermore, the Court in Doucette v. Shulkin, 28 Vet. App. 366 (2017) held that an extraschedular rating was not warranted if the manifestations of the disability are contemplated by the rating criteria. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In July 2020 the Board remanded the issue of whether the Veteran was entitled to extraschedular rating for her left wrist arthritis under 38 C.F.R. § 3.321(b)(1). In December 2020, the Director opined as follows: It is noted that evidence suggests DJD in the left wrist impacts the Veteran’s ability to work due to her inability to lift more than 25 pounds, or pull, push or grip objects for more than 15 minutes. However, it is noted she is not employed in a labor intensive position which would require such tasks. The Veteran is employed full-time as a field examiner for the Department of Veterans Affairs. Based on the evidence of record there is no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. Thus, entitlement to an extra-schedular rating is denied. Initially, the Board notes that it is not bound by the findings of the Director. Tellingly, while the Director’s extraschedular decisions may serve to inform the Board’s review, the Director’s decision is not evidence and is reviewable by the Board on a de novo basis. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). Nonetheless, the Board has reviewed all the evidence relating to the Veteran’s service-connected left wrist arthritis and also finds that the schedular criteria adequately encompassed the severity of her disability at all times during the pendency of the claim. See Owens, supra. The Board has reached this conclusion because extraschedular consideration is only warranted when the adverse symptomatology caused by a Veteran’s service-connected left wrist arthritis is not adequately compensated for by the rating criteria. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (providing, in substance, that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity). However, the Board finds that the most probative evidence of record in the form of the Veteran’s VA examinations and treatment records shows that the adverse symptomatology caused by her service-connected left wrist (i.e., in the none dominant hand) arthritis is both contemplated and consider by the rating criteria. See Owens, supra. Specifically, the Board notes that at all times during the appeal the medical records show the Veteran’s adverse left wrist arthritis symptomatology is limited to, in substance, her competent and credible lay claims of observable problems with left wrist pain, lost motion, giving way, instability, stiffness, and/or weakness with lifting, griping, and pulling objects. See, e.g., VA examinations dated in February 2008, February 2009, November 2011, April 2015, and June 2019; Also see Davidson, supra. Likewise, the record shows that the Veteran’s adverse left wrist arthritis symptomatology is limited to, in substance, objective evidence of lost motion (but not ankylosis), pain with motion and/or palpation, and/or reduced strength (i.e., 4/5) with flare-ups. See, e.g., VA examinations dated in February 2008, February 2009, November 2011, April 2015, and June 2019. Moreover, the April 2015 VA examiner was alone in noting that the Veteran left wrist has muscle atrophy; its’ circumference was 1 cm less than the right wrist. Additionally, as to the left wrist arthritis functional impact, the VA examiners noted as follows: at the February 2008 VA examination it was opined, without details, that it had a negative impact on daily living; at the February 2009 VA examination it was noted that it had a mild to no impact on daily living; at the November 2011 VA examination the Veteran reported that it caused her to type mostly right handed, it caused pain which was a distraction at work as well as interfered with sleep, and it caused decreased dexterity and strength; at the April 2015 VA examination the Veteran reported that she had difficulty lifting things, tends to drop items, and had fatigue and pain with typing; and the June 2019 examiner opined that her left wrist arthritis adversely impacted her ability to work due to her inability to lift more than 25 pounds nor pull, push, or grip object for more than 15 minutes. However, the Board finds it significant that the adverse symptomatology reported by the Veteran as well as those documented by her many VA examiners are contemplated by the rating criteria and limited to the criteria for a 10 percent level of disability for the left wrist arthritis. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5215 (provides a maximum 10 percent evaluation for left wrist limitation of motion even when considering her complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups when there is no involvement of two or more major joints or two or more minor joint groups); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Burton v. Shinseki, 25 Vet. App. 1 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016); and DeLuca v. Brown, 8 Vet. App. 202 (1995). Simply stated, a 10 percent rating will cause the Veteran problems. If it did not, there would be no basis for the 10 percent finding, or the other findings in this case. Parenthetically, the Board notes that many of the schedular criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended while this issue was in Remand status. See 38 C.F.R. § 4.71a, effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). However, because this current claim involves a claim for an extraschedular rating and because none of these changes apply to Diagnostic Code 5215, the Board finds that the Veteran is not prejudiced by it adjudicating this claim without her being first provided notice of these new Diagnostic Codes. The Board also finds it significant that, while the Veteran’s treatment records document her complaints and treatment for left wrist arthritis, none of these records show her adverse symptomatology includes symptoms not reported by the above examiners which are contemplated by, as well as compensated for, under the rating criteria (i.e., lost motion, reduced strength, and pain). See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Given the above medical history, the Board finds that the preponderance of the evidence in the form of the adverse symptomatology reported by the February 2008, February 2009, November 2011, April 2015, and June 2019 VA examiners shows that the criteria under which the Veteran’s left wrist arthritis is rated specifically compensates her for the lost motion, reduced strength, and pain documented in her medical records and/or reported by the appellant; the rating the claimant receives for the disability contemplates and compensates her for the reported adverse symptomatology and decreased ability to work. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5215; Shipwash, supra; Doucette, supra; Also see Correia, supra; Sharp, supra; Mitchell, supra; Burton, supra; Southall-Norman, supra; and DeLuca, supra. The best evidence in this case provides evidence against this claim. In reaching this conclusion, the Board has not overlooked the above VA examiners reports regarding the Veteran’s left wrist arthritis causing problems at work to include the June 2019 examiner’s opinion that it adversely impacts her ability to work due to her inability to lift more than 25 pounds nor pull, push, or grip object for more than 15 minutes. However, the Board finds that this adverse symptomatology is specifically contemplated and compensated for under Diagnostic Codes 5003, 5010, and 5215 because they consider, in substance, limitation of motion, reduced strength, and pain. Id. A 10 percent rating will cause problems at work. Likewise, in reaching this decision, the Board has considered the statements made by the Veteran and finds that she is competent to report on her observable symptoms. See Davidson, supra. However, to the extent the Veteran and her representative argue that the appellant’s symptomatology is more severe than contemplated by the rating schedule, including because it greatly impairs her ability to function normally, these statements must be weighed against the other evidence of record in the form of the VA examinations. See Owens, supra. Moreover, the Board finds that the specific examination findings and opinions of these trained health care professionals are of greater probative weight than the Veteran’s and her representative’s more general lay assertions because the trained health care professionals have greater medical expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Similarly, while the criteria for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) contemplates marked interference with employment and frequent periods of hospitalization (see Thun, supra.), the Board notes that the record is negative for the left wrist arthritis, acting alone, causing lost time from work and/or it ever causing a hospitalization. See Colvin, supra. In fact, the February 2009 VA examiner specifically reported that the Veteran did not have a history of hospitalization related to her left wrist arthritis. Likewise, while the Veteran at her February 2008, February 2009, November 2011, April 2015, and June 2019 VA examinations reported that she was working full-time, neither these VA examiners nor her treatment records document a history of lost work time related to her left wrist arthritis despite some reporting that it caused some problems while working. In other words, the Board finds it significant that the record does not show that the Veteran service-connected left wrist arthritis causes marked interference with employment or frequent periods of hospitalization because the record does not show it ever caused hospitalization or, acting alone, caused lost work time. Id. Additionally, the Board in adjudicating this claim cannot overlook the fact that the Veteran already has a combined 30 percent rating for her adverse left writ symptomatology (i.e., 10 percent for left wrist arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5010 and 20 percent for left wrist carpal tunnel syndrome under 38 C.F.R. § 4.124a, Diagnostic Code 8515) (see 38 C.F.R. § 4.25) and the maximum rating for her left wrist (i.e., her minor hand), after the first year even, even if the joint was removed and replaced with a prosthesis with accompanying severe and painful motion or weakness is only 30 percent (see 38 C.F.R. § 4.71a, Diagnostic Code 5053). The findings above are not meant to suggest that the Veteran does not have problems because of her service-connected left wrist arthritis. If there was no problem, there would be no basis for the current compensation level. It is also important for the Veteran to understand that not all medical evidence in this case supports the current schedular rating, let alone a higher extraschedular rating. It is only with taking into consideration the complaints seen in the record and all reasonable doubt that the current rating is justified. Given the above record, the Board finds that the claims file does not show such an exceptional disability picture such that an extraschedular evaluation for the Veteran’s left wrist arthritis is warranted under 38 C.F.R. § 3.321(b)(1). A comparison between the level of severity and symptomatology of the Veteran’s disability with the evidence found in the claims file shows that the 10 percent schedular rating already assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5010 reasonably describes her disability level and symptomatology at all times during the appeal. Also see 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a, Diagnostic Codes 5003, 5215; Correia, supra; Sharp, supra; Mitchell, supra; Burton, supra; Southall-Norman, supra; and DeLuca, supra. Stated another way, the Board finds that nothing in the record shows that the Veteran’s left wrist arthritis causes marked interference with employment or frequent periods of hospitalization beyond that which is already contemplated by the 10 percent schedular rating already assigned her left wrist arthritis under Diagnostic Code 5010. See Shipwash, supra; Doucette, supra. Therefore, the Board finds that the criteria for the award of an extraschedular evaluation for the Veteran’s service-connected left wrist arthritis under 38 C.F.R. § 3.321(b)(1) have not been met at all times during the pendency of this appeal and this claim is denied. See Thun, 22 Vet. App. 111; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz, supra; Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.