Citation Nr: 21026755 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-14 566 DATE: May 3, 2021 ORDER Entitlement to a rating higher than 10 percent for residuals of a right wrist fracture (right wrist disability) is denied. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's service-connected right wrist disability has been manifested by subjective complaints of pain and objective findings of decreased motion without ankylosis. 2. The preponderance of the evidence is against finding that the Veteran's service-connected disabilities are so severe that they preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent for a right wrist disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71(a), Diagnostic Code (Code) 5215. 2. The criteria for entitlement to TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1995 to April 1999 and from December 2001 to December 2005. These matters were last before the Board of Veterans' Appeals (Board) in June 2020 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Board notes that recently, the United States Court of Appeals for Veterans Claims (Court) held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this regard, review of VA examination reports, which are discussed further below, show that joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and with range of motion measurements of the opposite undamaged joint was done in compliance with Correia. Entitlement to a rating higher than 10 percent for a right wrist disability The Veteran's right wrist disability is rated 10 percent disabling under Code 5215. Under Code 5215, the maximum rating allowed for disability resulting from limitation of motion of the wrist is 10 percent. This rating is applicable when there is limitation of motion of the wrist with dorsiflexion less than 15 degrees or with palmar flexion limited in line with the forearm. 38 C.F.R. § 4.71a, Code 5215. On July 2015 VA-contract wrist conditions examination, the Veteran described functional impairment of his right wrist as not being able to play softball, lift weights, type more than 30 minutes or perform yardwork without his right wrist hurting. On range of motion testing, palmar flexion was to 35 degrees, dorsiflexion was to 70 degrees, ulnar deviation was to 30 degrees and radial deviation was to 15 degrees. There was pain noted on palmar flexion and ulnar deviation. The was no evidence of pain with weight bearing. Range of motion contributed to limited repetitive wrist movement. Pain, fatigue, weakness, and lack of endurance limited functional ability with repeated use over time. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis of the wrist. Degenerative or traumatic arthritis was not documented. The diagnosis was right status post right wrist fracture with residuals. The Veteran's right wrist disability impacts his ability to perform occupational task in that he cannot perform repetitive lifting or do keyboard work more than 30 minutes without resting. On May 2018 VA wrist conditions examination, the Veteran had abnormal range of motion. Palmar flexion was to 55 degrees, dorsiflexion was to 55 degrees, ulnar deviation was to 30 degrees and radial deviation was to 15 degrees. There was no pain on passive range of motion testing. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis of the wrist. There were no acute findings on x-rays of the right wrist. X-ray examination was essentially normal. The diagnosis was residuals of right wrist fracture. On November 2020 VA-contract wrist conditions examination, the Veteran reported flare-ups of the right wrist occur daily. The right wrist flare-ups are moderate to severe. The right wrist flare-ups las less than one hour and are precipitated by prolonged typing, writing and repetitive motions. The flare-ups are alleviated by rest. The Veteran described functional impairment of his right wrist as having difficulty with prolonged typing and writing, lifting heavy loads and limited range of motion. On range of motion testing, palmar flexion was to 40 degrees, dorsiflexion was to 40 degrees, ulnar deviation was to 25 degrees and radial deviation was to 15 degrees. There was no evidence of pain on passive range of motion and non-weight bearing testing of the left wrist. There was evidence of pain on passive range of motion and non-weight bearing testing of the right wrist. There was additional pain and lack of endurance after three repetitions and during a flare-up. Muscle strength was normal and there was no muscle atrophy. There was no ankylosis of the wrist. The diagnosis was residuals of a right (dominant) wrist fracture. Based on the medical evidence of record, the Board must conclude that a higher rating is not warranted for the Veteran's service-connected right wrist disability. And, since the Veteran currently receives the maximum 10 percent rating under Code 5215, an increased rating under this provision is not possible. Further, a higher rating is not possible under Code 5214 for ankylosis of the wrist as the record contains no objective finding of ankylosis (favorable or unfavorable) and the Veteran has not contended otherwise. Furthermore, the July 2015, May 2018 and November 2020 examinations specifically found no ankylosis. Moreover, where a musculoskeletal disability is currently evaluated at the highest schedular evaluation available based upon limitation of motion, an analysis under DeLuca v. Brown, 8 Vet. App. 202 (1995) is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Thus, since the Veteran has been granted the maximum rating possible under Code 5215, the analysis required by DeLuca, would not result in a higher schedular rating. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his right wrist disability. (See statement that accompany January 2018 Notice of Disagreement). The Board acknowledges that the Veteran, in advancing this appeal, believes that his right wrist disability has been more severe than the assigned disability rating reflects. However, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the right wrist disability; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In conclusion, based on the analysis above, the Board must conclude that a preponderance of the evidence is against a rating higher than 10 percent for residuals of a right wrist fracture. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to TDIU In a September 2018 Board remand, the Board found that a claim for TDIU had been raised by the record as part and parcel of the appeal for an increased rating claim for a right wrist disability. The Board remanded the issue of TDIU as inextricably intertwined with the increase rating claim on appeal. The matter of a TDIU was again remanded in June 2020 because it was not adjudicated pursuant to the September 2018 remand. The matter is being addressed herein. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16. Under the applicable regulations, a TDIU may be granted only when it is established that the Veteran's service-connected disabilities are so severe, without factoring the effect of nonservice-connected disabilities, as to prevent the Veteran from obtaining and maintaining substantially gainful occupation. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. The Veteran is service connected for six disabilities including a psychiatric disorder claimed as posttraumatic stress disorder with a 70 percent disability rating and has essentially had a combined rating of 80 percent since March 2016. (Excepting receipt of 100 percent for convalescence from July 31, 2017 to October 31, 2017). The Board therefore finds the Veteran meets the schedular criteria for the period on appeal. 38 C.F.R. § 4.16(a). However, even if the rating requirements are met, TDIU may be awarded only if the evidence shows that a Veteran's impairment is so severe that it is impossible for him to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Therefore, the 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), i.e., to prevent the Veteran from "securing and following a substantially gainful occupation," Ray v. Wilkie, 31 Vet. App. 58, 73 (2018). The Court clarified that the phrase "unable to secure and follow a substantially gainful occupation" has two components, see id., an economic component and a noneconomic component. The economic component derives from an employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides. Id. Therefore, the economic component suggests a living wage, and a marginal employment does not qualify as a substantially gainful occupation. 38 C.F.R. § 4.16(a). For instance, marginal employment is present if a Veteran's earned annual income is equal or below the poverty threshold for one person, as established by the U.S. Department of Commerce, Census Bureau. Id. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Further, marginal employment may also exist in certain circumstances when the Veteran's earned annual income exceeds the poverty threshold, but he is employed in a "protected environment," to include a family business. In determining whether the employment is "protected," the Board considers the magnitude of the Veteran's job responsibilities and whether the environment was designed to rehabilitate, train, or provide employ for those with disabilities. Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Here, the Veteran has not asserted that he has been unable to maintain substantially gainful employment due to his service-connected disabilities, especially his right wrist disability. Instead, he has asserted that he experiences functional impairment due to his right wrist and has limitations on activities that require him to use his right hand/wrist, such as performing repetitive lifting or working on a keyboard more than 30 minutes without resting. In a statement attached to a January 2018 Notice of Disagreement, the Veteran stated that he tried to work as a civilian fire fighter but could not pass the private fire fighter physical due to his right wrist. He stated that for the last several years he has worked as a carpenter but had trouble with his right wrist with hammering. After using a hammer for a short time, he would experience increased pain of his right wrist and would have to shift over to using his left hand. He has trouble using a keyboard because of right wrist pain. Medical evidence associated with the Veteran's claims file indicates he has not been precluded from obtaining or maintaining gainful employment due to his service-connected disabilities. It was noted in a December 2020 VA mental health counseling note that the Veteran continued to work the night shift. In a subsequent December 2020 VA mental health telephone encounter he related that work was going well and that he is adjusting to his new schedule of nighttime work. An January 2021 emergency room patient work excuse letter by a medical staff physician at a VA medical center noted the Veteran "is clear to resume FULL work duties." (Continued on the next page) Accordingly, the Board finds the preponderance of the evidence is against finding that the Veteran's service-connected disabilities were so severe that they precluded him from securing or following a substantially gainful occupation. Thus, TDIU is denied. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.