Citation Nr: 21024109 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-12 081A DATE: April 22, 2021 ORDER The petition to reopen a previously denied claim for service connection for a gastrointestinal/digestive condition is denied. Entitlement to a rating higher than 30 percent for right cubital syndrome, to include entitlement to a temporary total rating due to surgical treatment requiring convalescence, is denied. A total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDINGS OF FACT 1. An unappealed claim of service connection for a gastrointestinal/digestive condition was denied by the Board in a January 2011 decision. 2. The additional evidence received since the January 2011 Board decision is not new and material to reopen the claim of entitlement to service connection for a gastrointestinal/digestive condition. 3. For the entire rating period on appeal, symptoms the Veteran’s ulnar nerve disability more nearly approximated moderate incomplete paralysis of the ulnar nerve. 4. Resolving any reasonable doubt in the Veteran’s favor, he was unable to secure and follow a substantially gainful occupation by reason of his service-connected right cubital tunnel syndrome. CONCLUSIONS OF LAW 1. The Board’s January 2011 decision denying service connection for a gastrointestinal/digestive condition is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2020). 2. The evidence received since the final January 2011 Board’s does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a gastrointestinal/digestive condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for a rating higher than 30 percent for right cubital tunnel syndrome are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8516 (2020). 4. The criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to January 1987. This appeal stems from August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran and his spouse testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In October 2019, the Board remanded the appeal in order to obtain outstanding treatment records identified by the Veteran during the hearing. Subsequently, the Veteran submitted additional records pretraining to the issue of increased rating for a right cubital syndrome. The Veteran failed to respond to the RO’s request of release of information forms and in December 2019 correspondence indicated that he had no additional records and asked that the Board move forward with deciding his claim. The case has since returned to the Board for further appellate consideration. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in a January 2011 decision, the Board denied the claim for service connection for a gastrointestinal condition. The Veteran did not timely appeal the decision to the United States Court of Appeals for Veterans Claims. Therefore, this decision became final. 38 U.S.C. § 7105 (d)(3) (2012); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2019). Since the Board denied the claim in January 2011, the Veteran has provided no material evidence to substantiate his claim. As discussed in the Board’s October 2019 remand, the claim was remanded to provide the Veteran with the opportunity to submit relevant records he identified at the time of the Board’s hearing. However, the Veteran has indicated that he has no additional evidence and has not returned to the RO any request for records. As such, there is no new and material evidence to consider with regards to the Veteran’s petition to reopen. Therefore, new and material evidence was not received to reopen the previously denied claim of entitlement to service connection for a gastrointestinal/digestive condition. Increased Rating for Right Cubital Syndrome From March 31, 2011 and from April 1, 2014, the Veteran’s right cubital syndrome is rated as 30 percent disabling. From January 15, 2014 to April 1, 2014, the Veteran received a temporary total rating for post-surgical convalescence due to his service-connected right cubital syndrome. Rating Criteria The Veteran’s disability is rated under Diagnostic Code (DC) 8516. The Veteran is right-handed, and therefore the “major side” provisions of DC 8516 apply. Under DC 8516, for the major side, mild incomplete paralysis of the ulnar nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 30 percent disabling; and severe incomplete paralysis is rated as 50 percent disabling. Complete paralysis is rated as 70 percent disabling. Under DC 8516, complete paralysis is characterized by the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Analysis On review, the Board finds that a rating higher than 30 percent is not warranted. In July 2011, the Veteran underwent a compensation examination, during which he reported having tingling, numbness, and weakness that were 8 out of 10 in severity and pain that was 10 out of 10 in severity. There was no abnormal sensation, anesthesia, or paralysis of the area. The numbness occurred in the outward/back part of the arm. Weakness occurred after repetitive lifting. During flare-ups, the pain was severe and there was swelling. All symptoms described occurred intermittently as often as twice a week with each occurrence lasting for one day. The Veteran could not recall how many “attacks” he had in the previous year. During a flare-up, the Veteran could not use the arm at all. He could not lift repeatedly without triggering a flare-up. For treatment, the Veteran took medications and underwent physical therapy. Upon physical examination, range of motion was normal to 145 degrees flexion and 0 degrees extension. There was no additional loss of function or range of motion after repetitive use testing. The examiner indicated that the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. A neurological examination of the right upper extremity revealed motor function within normal limits, decreased right ulnar sensory function, and reflexes within normal limits. There was no decrease in muscle strength or muscle atrophy. In February 2014, the Veteran underwent a peripheral nerves conditions compensation examination, during which time he moderate constant pain and numbness. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex examination was normal. Sensory examination was decreased in the right inner/outer forearm and hand/fingers. There were no trophic changes. The examiner did not address the level of severity of any neurological impairment. It was noted that the Veteran used no assistive devices. In December 2018, the Veteran underwent a medical epicondyle release surgery. During the post-operative appointment in January 2019, it was noted that the Veteran experienced pain. However, the physician recommended therapeutic exercises, massage, hand rehabilitation, home exercise program, hot/ice packs, and joint motion. In addition, the physician indicated that the Veteran could return to work immediately under modified restricted duty with limited lifting to 15 pounds. There is no indication that a period of post-surgical convalescence was required. In February 2019, the Veteran underwent an additional peripheral nerves conditions compensation examination, at which time he reported that his condition progressed. The examiner noted mild constant pain, paresthesias, and numbness of the right upper extremity. Muscle strength testing showed active movement against some resistance (4/5) with no evidence of muscle atrophy. Reflex examination was hypoactive (1+) throughout the right upper extremity. Sensory examination was decreased in the right inner/outer forearm and hand/fingers. There were no trophic changes. Phalen’s and Tinel’s signs were positive. The examiner concluded that the Veteran had mild incomplete paralysis of the ulnar nerve. The Veteran used no assistive devices. On review, the Board finds that the weight of the competent medical evidence is against finding that the Veteran had severe incomplete paralysis or complete paralysis of the ulnar nerve. In this regard, the medical evidence discussed herein more nearly approximates, at worst, moderate incomplete paralysis of the ulnar nerve. Notably, the most recent examination suggested that the Veteran’s disability amounted to only mild incomplete paralysis. While the Veteran is competent to describe symptoms he experiences at any given time, under the facts of this case, he does not show to possess the necessary medical knowledge and expertise to assess the severity of a nerve condition. No medical professional concluded that the Veteran had severe incomplete or complete paralysis of the ulnar nerve. Here, the Board assigns a higher probative weight to the medical evidence than to the Veteran’s lay assertions. In this regard, therefore, the currently assigned rating for moderate incomplete paralysis of the ulnar nerve contemplates the Veteran’s symptoms during the pendency of the appeal. Lastly, the Board finds that a separate compensable rating is not warranted for a right elbow epicondylitis. Notably, right elbow epicondylitis manifested by pain and numbness, both which are contemplated by the assigned rating for the right cubital tunnel syndrome. Accordingly, assigning a separate rating for this disability based on the same symptoms (numbness and pain) would constitute prohibited pyramiding. 38 C.F.R. § 4.14; Esteban, supra. Entitlement to a TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Here, in a December 2020 Memorandum, a Director of Compensation Service determined that the evidence did not support entitlement to a TDIU on an extraschedular basis. Nonetheless, although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a) (2012); 38 C.F.R. § 4.16 (b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. 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, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have 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. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Analysis The Veteran asserts that he had been precluded from obtaining or maintaining substantially gainful employment as a result of his service-connected right cubital syndrome. In a May 2013, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran indicated that he still worked at a warehouse for 30 hours a week. However, during the November 2018 Board hearing, the Veteran explained that he stopped working in May 2013. Significantly, the Veteran’s only work experience was as a warehouse worker, and that he had high school education, but no other training or work experience. He further testified that he could no longer do any warehouse work based on his prior work experience since he was limited in the amount of weight he could carry as a result of his service-connected right cubital syndrome. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining and obtaining gainful occupation due to his service-connected right cubital syndrome. Here, the Veteran’s sole work experience was as warehouse worker, and the evidence reflects that his job was impacted inability to carry items heavier than 15 pounds, which was required by his job. Specifically, the private physicians who treated the Veteran indicated that he could only do light duty work and the 2019 examiner indicated that the Veteran would be limited from handling power tools, precluded from any heavy liftings, and even limited in the use of a computer keyboard. The Veteran credibly testified that he had no other experience aside from his work as a warehouseman. The Board thus finds that the evidence, overall, is at the very least in equipoise. Thus, with resolution of any doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU on an extraschedular basis is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.