Citation Nr: 21039805 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-13 747 DATE: July 1, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for postoperative residuals, laceration left ulnar nerve with second degree burn left fifth finger (hereinafter "left arm condition") is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 6, 2015 is remanded. FINDING OF FACT The schedular criteria fully contemplate manifestations and Veteran's complaints with regard to his left arm condition; extraschedular consideration is not warranted. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 50 percent for the Veteran's left arm condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1988 to December 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 2015 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The record reflects that the Veteran requested, but did not attend, a hearing before the Board. See March 2016 VA Form 9; cf. May 2021 Appellate Brief at 2. Accordingly, the Board will presume that the Veteran's request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(d). 1. Entitlement to a disability rating in excess of 50 percent for the Veteran's left arm condition. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, 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 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are 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 Veteran's left arm condition is rated as 50 percent disabling throughout the rating period on appeal under Diagnostic Code (DC) 8516. The applicable rating criteria provide that a 50 percent disability rating is the highest schedular rating available when this condition manifests in the non-dominant extremity. See 38 C.F.R. § 4.124a, DC 8516; see also December 2014 VA Examination Report at 3 (noting that the Veteran is right-handed). Accordingly, there is no basis for the Board to assign a schedular rating higher than that already assigned. The Veteran asserts that he is entitled to an extraschedular rating for this condition because it interferes with his ability to work. See March 2016 VA Form 9. The Board may not grant an extraschedular rating in the first instance. 38 C.F.R. § 3.321(b)(1). Referral for extraschedular consideration is warranted where 1) the established schedular criteria are inadequate to describe the severity and symptoms of the Veteran's disability, 2) the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization, and 3) the award of an extraschedular disability rating is in the interest of justice. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). As noted above, the threshold question is whether the established schedular criteria are adequate to describe the severity and symptoms of the Veteran's disability. The Veteran has not asserted, nor does the evidence of record otherwise reflect, symptoms not contemplated by the schedular criteria. See December 2014 VA Examination Report at 2-3 (describing pain and weakness of left arm); see also id. at 3-4 (observing pain, paresthesias or dysesthesias, and numbness of left arm); cf. 38 C.F.R. § 4.124a, DC 8516 (providing that the 50 percent rating is applicable for conditions manifesting as or approximating complete paralysis of the ulnar nerve). The Board notes that while this VA examination is from December 2014, neither the Veteran's more recent assertions nor more recent VA medical records reflect any symptoms not already contemplated by the schedular rating criteria. See December 2016 Medical Treatment Records at 29 (providing October 2016 treatment note observing left arm pain); see also May 2021 Appellate Brief. The Board finds that the schedular criteria fully contemplate the Veteran's level of disability and symptomatology. He complains of functional impairment due to pain and impaired motion which are the factors on which his current rating is assigned. Accordingly, the Veteran's left arm disability is properly contemplated under the schedular criteria. The rating schedule is adequate and referral for extraschedular consideration is not needed under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). REASONS FOR REMAND 1. Entitlement to a TDIU prior to April 6, 2015. Generally, VA will assign a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. For the Board to assign a TDIU in the first instance, a veteran must have a single disability rated at least 60 percent disabling, or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater. See 38 C.F.R. § 4.16(a). The record reflects that the Veteran was service connected for a psychiatric condition from April 6, 2015. See January 2016 Rating Decision at 1. In conjunction with his left arm condition, this psychiatric condition supported the assignment of a TDIU, which was granted effective from that date. See September 2016 Rating Decision at 1; see also June 2018 Rating Code sheet at 1. The issue before the Board is therefore whether the Veteran is also entitled to a TDIU prior to that date on an extraschedular basis. See 38 C.F.R. § 4.16(b) (providing that the Board "should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards"). The Board notes that the Veteran's application for a TDIU was filed in October 2014 and reflects a history of employment in construction and manual labor. See October 2014 VA Form 21-8940 at 1-2; see also id. (providing high school as the highest level of general education completed, with professional certificates in physically-demanding construction subspecialties); see also December 2014 VA Examination Report at 11 (providing examiner's opinion that the Veteran's left arm condition would effectively preclude the reliable use of his left hand under working conditions); see also id. at 2 (noting Veteran's assertion that symptoms of weakness had been worsening over preceding three years). Given the Veteran's limited general education and narrowly-specialized professional training, as well as the difficulty of working one-handed for purposes of unskilled physical labor, the Board finds it at least as likely as not that the Veteran was unemployable due to his left arm condition prior to April 6, 2015. 38 U.S.C. § 5107. Referral for consideration of an extraschedular TDIU is therefore warranted. This matter is therefore REMANDED for the following action: 1. Provide the Veteran's claims file, including a copy of this remand, to the Director, Compensation Service, for consideration of an extraschedular TDIU. MARGARET M. LUNGER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, Associate 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.