Citation Nr: 21025935 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 07-20 983A DATE: April 29, 2021 ORDER Entitlement to a disability rating greater than 40 percent effective April 25, 2017, for a left wrist disability, to include on an extraschedular basis, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran is right-hand dominant; thus, his left wrist is his minor (non-dominant) wrist. 2. The 40 percent rating effective April 25, 2017, for service-connected ankylosis of the minor (non-dominant) wrist represents the maximum schedular disability rating allowable based on ankylosis of the minor wrist. CONCLUSION OF LAW There is no legal basis for the assignment of a schedular rating greater than 40 percent effective April 25, 2017, for a service-connected left wrist disability. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5214, 5215 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service with the U.S. Army from January 1985 to July 1986. He also had service with the U.S. Army Reserve. Board decisions in August 2017 and March 2019 denied the Veteran’s claims of entitlement to an increased rating for a service-connected left wrist disability and to a TDIU. The Veteran appealed the Board’s decisions to the United States Court of Appeals for Veterans Claims (Court). In Orders dated in August 2018 and June 2020, the Court granted Joint Motions for Remand (JMRs) which vacated the Board’s decisions and remanded this appeal for readjudication. In October 2020, the Board remanded the claims for further development. Increased Rating Entitlement to a disability rating greater than 40 percent effective April 25, 2017, for a left wrist disability The Veteran seeks a higher rating for service-connected left wrist disability. He states that pain in the left wrist makes personal hygiene, getting dressed, preparing food, and holding objects in the left hand difficult. Disabilities of the wrist are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5214 and 5215. The current rating exceeds the maximum 10 percent rating pursuant to Diagnostic Code 5215 for limitation of motion; thus, his left wrist claim is evaluated pursuant to Diagnostic Code 5214. Under Diagnostic Code 5214, the highest compensable rating for ankylosis involving the minor wrist in any position other than favorable is 40 percent for the minor hand. Here, the evidence indicates that the Veteran is right-handed. Therefore, the ratings for the minor side are for consideration. Ankylosis is defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). On an April 2017 VA examination for his left wrist, the Veteran reported that the pain in his left wrist made it difficult to do many things such as taking care of his personal hygiene, getting dressed, preparing food, and holding objects in the left hand. Unfavorable ankylosis of the left wrist was noted with ulnar deviation at 30 degrees, radial deviation at 10 degrees, and dorsiflexion to 40 degrees. In a September 2019 VA opinion, the physician concluded that the Veteran was able to lift and carry objects weighing 35 pounds. The physician also discussed that most individuals use the dominant hand for fine motor function, such as tooth brushing and hair brushing. In a June 2020 VA opinion, the physician concluded that the Veteran did not have loss of use of the left hand such that acts of grasping, manipulation, and more could be accomplished equally well by an amputation stump with prosthesis. The Board concludes that the evidence does not support assigning a disability rating greater than 40 percent effective April 25, 2017, for a left wrist disability. As noted, the Veteran already is in receipt of the maximum schedular rating for his service-connected left wrist disability. In other words, there is no legal basis upon which to award a schedular disability rating higher than 40 percent and the claim for a higher schedular rating for this disability is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has considered the July 2017 contention by the Veteran’s representative that an extraschedular rating for the service-connected left wrist disability is warranted pursuant to 38 C.F.R. § 3.321(b). In October 2020, the Board referred the Veteran’s claim for extraschedular consideration by the Director, Compensation Service (“Director”), in accordance with 38 C.F.R. § 3.321(b) in light of the Veteran’s reports that his left hand interferes with his activities of daily living. In January 2021, the Director found that the evidentiary record did not show an exceptional disability pattern for the service-connected left wrist disability that rendered application of the regular rating criteria impractical. See Thun v. Peake, 22 Vet. App. 111 (2008). In making this determination, the Director noted that there is no indication that the Veteran has been hospitalized for any extended periods of time due to the left wrist condition or that it caused incapacitating episodes creating interference with employment. The Director determined that none of the available evidence supports the Veteran’s contention that his left wrist condition warrants an extra schedular evaluation. Based on thorough consideration of the evidence, the Board finds that the Veteran’s disability picture as a result of his service-connected left wrist disability is not so exceptional or unusual as to render impractical the application of the regular schedular criteria. As this issue has been considered by the Director in the first instance, the Board may consider the issue. The symptoms of the Veteran’s service-connected left wrist disability include pain, limitation of motion, and difficulty performing activities of daily living such as taking care of his personal hygiene, getting dressed, preparing food, and holding objects in the left hand. All of these factors, including economic inadaptability, are considered in the assignment of the 40 percent rating under DC 5214. Further, in June 2020, a physician specifically found that the Veteran did not have loss of use of the left hand such that acts of grasping, manipulation, and more could be accomplished equally well by an amputation stump with prosthesis. The Board has compared the level of severity and symptomatology of the service-connected left wrist disability on appeal with the established criteria found in the rating schedule and finds that the Veteran’s symptomatology is addressed by the schedular rating criteria. In other words, the Board finds that the schedular rating criteria reasonably describe the Veteran’s disability level and symptomatology of his service-connected left wrist disability. As such, the rating schedule is adequate to evaluate the Veteran’s disability picture. There is nothing exceptional or unusual about the service-connected left wrist disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Accordingly, the Board is not required to proceed to the second Thun factor (whether there are related factors such as marked interference with employment or frequent periods of hospitalization). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 40 percent, including on an extraschedular basis, for his service-connected left wrist disability. In summary, the Board finds that the criteria for a disability rating greater than 40 percent effective April 25, 2017, including on an extraschedular basis, for a left wrist disability have not been met. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran alleges that he is unable to work due to his service-connected disabilities. Service connection currently is in effect for a left wrist disability, evaluated as 40 percent disabling effective March 23, 2004, a left thumb disability, evaluated as 20 percent disabling effective May 1, 2004, a scar of the left thumb, evaluated as zero percent disabling effective February 19, 2002, and a scar of the left wrist, evaluated as zero percent disabling effective May 26, 2004. Additional evidence reflects that he has ankylosis of the left hand. See April 2017 VA examination. He submitted a VA Form 21-8940 (formal TDIU claim) in which he reported that he completed four years of high school and did not have any college education. He also reported that he had specialized training in barbering and hairstyling and that he worked as a barber until he became too disabled to work in September 2007. The Board notes that the Veteran does not meet the disability percentage threshold for schedular TDIU consideration. 38 C.F.R. §§ 4.16(a). Nevertheless, even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board does not have the authority to assign extraschedular TDIU in the first instance. 38 C.F.R. § 4.16(b). Rather, the Board only may consider whether referral for extraschedular TDIU to the Director, Compensation Service (“Director”), is appropriate. The Veteran has alleged that he is unemployable due to his service-connected disabilities. He does not meet the schedular criteria for a TDIU. He only completed four years of high school education. And his career consisted of working as a barber which relies heavily on the use of hands. The Board finds that referral to the Director for consideration of entitlement to a TDIU on an extraschedular basis is appropriate. The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Services, for consideration. A copy of the Director’s decision should be associated with the claims file. 2. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.