Citation Nr: 22014211
Decision Date: 03/11/22	Archive Date: 03/11/22

DOCKET NO. 17-23 269
DATE: March 11, 2022

ORDER

Entitlement to an initial rating higher than 10 percent for residuals of right wrist, old avulsion injury of the ulnar styloid process, result of chronic wrist sprain (right wrist disability) is denied.

Entitlement to an initial rating higher than 10 percent for residuals of left wrist, old avulsion injury of the ulnar styloid process, result of chronic wrist sprain (left wrist disability) is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.

FINDINGS OF FACT

1. The Veteran is in receipt of the maximum rating provided under Diagnostic Code 5215 for right wrist limitation of motion for the entire period on appeal.

2. The Veteran is in receipt of the maximum rating provided under Diagnostic Code 5215 for left wrist limitation of motion for the entire period on appeal.

3. The weight of the probative evidence is against a finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience at any point during the appeal period.

CONCLUSIONS OF LAW

1. The criteria for an initial rating higher than 10 percent for right wrist disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.71a, Diagnostic Code 5215 (2020).

2. The criteria for an initial rating higher than 10 percent for left wrist disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.71a, Diagnostic Code 5215 (2020).

3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 3.102, 1155, 5107 (2012); 38 C.F.R. § 4.16 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1998 to November 2013.

These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2015 and October 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

The February 2015 rating decision, in pertinent part, granted service connection for a right wrist disability and a left wrist disability and assigned noncompensable evaluations effective from November 11, 2013. In September 2015, the Veteran filed an application for TDIU, which the RO constructed, in part, to include increased rating claims for the Veteran's right and left wrist disabilities. The October 2015 rating decision, in pertinent part, denied increased ratings for the Veteran's right and left wrist disabilities. The Veteran submitted a January 2016 notice of disagreement, in part, as to these denials. Although the Veteran specified the December 2015 notice of disagreement pertained to the October 2015 rating decision, such was also timely as to the February 2015 rating decision, which is more favorable to the Veteran.  Following issuance of a statement of the case in March 2017, a substantive appeal was timely received in April 2017, within 60 days thereafter. As such, the February 2015 rating decision is the rating decision on appeal as to the Veteran's right and left wrist disabilities.

These matters were remanded by the Board in April 2019 for further development.  They now return for appellate review.  

INCREASED RATING

1. Entitlement to an initial rating higher than 10 percent for right wrist disability

2. Entitlement to an initial rating higher than 10 percent for left wrist disability

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The Veteran seeks a higher initial ratings for his service-connected right wrist and left wrist disabilities. He asserted that he experiences symptoms of constant pain upon motion in both wrists and occasional swelling, as reflected in a January 2016 statement and an April 2017 VA Form 9, substantive appeal. Additionally, he also asserted that his right and left wrist disabilities have progressively worsened and negatively affect his occupational and social functioning, as reflected in an April 2019 Informal Hearing Presentation.

As discussed above, service connection for a right wrist disability and left wrist disability were established, respectively, in a February 2015 rating decision and each assigned a noncompensable rating, effective November 11, 2013 (first day after discharge from active duty), under 38 C.F.R. § 4.71a, Diagnostic Code 5215.  A January 2021 rating decision assigned increased ratings of 10 percent for each wrist based on painful motion, effective November 11, 2013.

The Rating Schedule distinguishes between the major/dominant extremity and the minor/non-dominant extremity for rating purposes. 38 C.F.R. § 4.69.  In this case, the record shows that the Veteran is right-handed. Thus, his service-connected right wrist disability affects his major extremity, and left wrist disability affects his minor extremity.

Diagnostic Code 5215 provides the rating criteria for limitation of motion of the wrist. A maximum 10 percent rating is provided for dorsiflexion limited to less than 15 degrees and for palmar flexion limited in line with the forearm for the major and minor wrist. Additionally, during the pendency of the appeal, VA revised the portion of the VA Schedule for Rating Disabilities that addresses the musculoskeletal system. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The final rule went into effect February 7, 2021; however, Diagnostic Code 5215, under which the Veteran's wrist disabilities are rated was unchanged by the amendments.

After reviewing the evidence, the Board finds that initial ratings in excess of 10 percent for limitation of motion of the right wrist and left wrist are not warranted at any point during the appeal period. The Veteran is already in receipt of the maximum rating (10 percent) provided under Diagnostic Code 5215 for his right wrist and left wrist, respectively, based on limitation of motion. Thus, a higher rating under Diagnostic Code 5215 is not available.

The Board has considered whether an increased rating for the bilateral wrists is warranted under any other diagnostic criteria but finds that none apply in this case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The only other diagnostic code pertaining to the wrist is Diagnostic Code 5214, which pertains to ankylosis of the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5214.  As opposed to limitation of motion, ankylosis is a distinct disability defined as the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Diagnostic Code 5214 does not apply to either wrist in this case because there is no evidence showing the right wrist or left wrist is ankylosed, nor has the Veteran asserted such. The January 2015, October 2015 and December 2020 VA examiners all indicated there was no evidence of ankylosis of the right or the left wrist. Further, both wrists exhibited normal range of motion during the January 2015 and October 2015 VA examinations. While the right wrist and left wrist exhibited more limited motion during the December 2020 VA examination, each wrists exhibited some motion, specifically, bilateral palmar flexion limited to 70 degrees (normal is 0 to 80 degrees), dorsiflexion limited to 25 degrees (normal is 0 to 70 degrees) and ulnar deviation limited to 30 degrees (normal is 0 to 45 degrees), and normal radial deviation. The Veteran's treatment records do not show any objective findings or treatment related to the Veteran's wrists.  Thus, ankylosis has not been shown.  

The Board has considered functional impairment and the effects of pain on functional abilities due to the service-connected bilateral wrist disabilities. The Board acknowledges the subjective complaints made by the Veteran in statements on appeal, discussed above, and during VA examinations, including that his wrist conditions affect his playing video games, carrying heavy objects and doing push-ups and cause discomfort with twisting motions, which he relieves by popping his wrists, and that he keeps his wrists in a neutral position to control pain, as reported during the October 2015 VA examination; and that he has pain with any use of either wrist, even while carrying his telephone, his wrists pop, and he cannot use his wrists for any heavy work, cannot use a wrench or screw driver and that he cannot carry heavy objects, as reported during the December 2020 VA examination. The Board also acknowledges the objective evidence during the December 2020 VA examination of functional loss in the form of less movement than normal bilaterally with palmar flexion, dorsiflexion and ulnar deviation, such that the Veteran cannot flex or extend the bilateral wrists normally; bilateral wrist pain causing functional loss in all ranges of motion ranges and on weight bearing, non-weight bearing and passive range of motion and during flare ups; and right wrist crepitus. However, in this case, the Board does not find any additional functional loss in either wrist that is not contemplated by the currently assigned 10 percent rating. The Veteran did not exhibit any additional loss of motion in the right or left wrist in any range after repetitive use testing, repeated use over time or during flare ups, and had full muscle strength and no muscle atrophy during the January 2015, October 2015 and December 2020 VA examinations. The Board finds that these findings do not more nearly approximate favorable or unfavorable ankylosis so as to support a higher rating under Diagnostic Code 5214, nor do they more nearly approximate loss of use of the right or left hand so as to support a higher rating under Diagnostic Code 5125. Thus, ratings higher than 10 percent for the right wrist and left wrist disabilities are not warranted based on functional impairment of the wrist at any point during the appeal. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06.

In sum, the weight of the evidence supports the currently assigned 10 percent rating for the right wrist disability and left wrist disability, respectively, and the claim for increased initial ratings is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Entitlement to a TDIU due to service-connected disabilities

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. In reaching such a determination, the central 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). 

Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. §§ 4.16(a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist in some cases when earned annual income exceeds the poverty threshold on a facts-found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id.  

A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one service-connected disability, this disability is rated at 60 percent or more, or if there are two or more service-connected disabilities, there is at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a).

The Veteran is service-connected for sleep apnea, rated as 50 percent disabling throughout the appeal period; posttraumatic stress disorder (PTSD), rated as 70 percent disabling from November 11, 2013 to September 29, 2015, and 50 percent thereafter; lumbar condition, rated as 20 percent disabling throughout the appeal period; right wrist, left wrist, cervical strain, and tinnitus, each rated as 10 percent disabling throughout the appeal period; right knee strain rated as noncompensable from November 11, 2013 to September 29, 2015, and 10 percent thereafter; right ankle, rated as 10 percent disabling from November 11, 2013 to September 29, 2015, and noncompensable thereafter; and scars related to the right knee and right ankle, rated as noncompensable throughout the appeal period. The combined rating, including a bilateral factor, has been 90 percent throughout the appeal period. Thus, the schedular requirements for entitlement to a TDIU have been met throughout the appeal period. 38 C.F.R. § 4.16(a)(2).

The Veteran asserts, in essence, that entitlement to a TDIU is warranted because his service-connected disabilities significantly interfere with gainful employment. On his November 2015 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran claimed TDIU based on his service-connected PTSD, sleep apnea, right knee, right ankle and bilateral wrist disabilities. He noted he last worked full time on November 11, 2013, which is the first day after his discharge from military service; that he has not tried to find work since becoming too disabled to work; and that his annual income in 2012 was $45,000. In an attached statement, he asserted that his service connected disabilities prevent him from obtaining and maintaining gainful employment and he believes no employer would hire him due to his service-connected disabilities. 

After reviewing the evidence of record, the Board finds that the weight of the probative evidence is against finding entitlement to a TDIU at any point during the appeal period.  The United States Court of Appeals for Veterans Claims has interpreted the phrase "substantially gainful employment" to include both an economic component and a non-economic component, specifically whether an occupation produces more than marginal income (economic component) and whether the Veteran is capable of performing the physical and mental acts required by employment (non-economic component). See Ray v. Wilkie, 31 Vet. App. 58, 69 (2019). 

Regarding the economic component, the Veteran reported on his November 2015 VA Form 21-8940 that he has not been employed since November 11, 2013. A subsequent VA treatment record in May 2020, however, shows that the Veteran reported he was currently working as a sales representative for Spectrum. Nonetheless, VA must still determine whether the Veteran's service-connected disabilities render him incapable for performing the acts required by employment. See Van Hoose, 4 Vet. App. at 363.  The Board finds that the probative evidence of record does not support such a finding. 

While the Veteran reported on the November 2015 VA Form 21-8940 that he left military service due to his service-connected disabilities, service personnel records note the reason for separation was reduction in force. Also, the Veteran reported during a January 2015 VA wrist conditions examination that he decided to get out of the military to pursue his dream of designing video games, as he was assigned to the "most boring" Air Force base, which was located three hours away from "any fun activity" and that, although he liked his military duties of flying and directing drones, he was happy in school presently and planned to complete his degree. 

The record shows that the Veteran completed high school prior to entering service and after service was enrolled at a university studying coursework to become a video game programmer and completed approximately two years of college coursework but has not earned a college degree. 

The Veteran's DD Form 214 shows his military duties included remotely piloted aircraft (RPA) sensor operator craftsman, cyber systems operations craftsman, and geospatial intelligence. His military education included airman leadership school, training and qualification courses, and special operations coursework. His ribbons include, among others, imagery analysis apprentice course, defense message system administrator, network management systems, theater deployable communication data course, and system network support. A rehabilitation needs inventory (RNI) form pertaining to an application for Vocational Rehabilitation and Education (VRE) benefits shows the Veteran reported his military work history included censor operator, robotic process automation (RPA) operation, network administration, help desk, server administration and equipment management and that he has network and computer skills. 

With respect to the service-connected bilateral wrist disabilities, the record indicates the Veteran is diagnosed with chronic left and right wrist sprain and underwent VA examinations in January 2015, October 2015 and December 2020. The January 2015 and October 2015 VA examiners determined that the diagnosed right and left chronic wrist sprains had no functional impact on the Veteran's ability to work, while the December 2020 VA examiner indicated wrist pain when typing or with repetitive use of the wrists and sedentary work causes wrist pain if it involves use of the hands and wrists. During the January 2015 VA examination, the Veteran reported that his wrists did not functionally impact his ability to work, and during the October 2015 VA examination, he reported that his wrists affect current activities of playing video games, carrying heavy items and doing push-ups and that twisting motions cause discomfort. During the December 2020 VA examination, the Veteran reported functional loss or impairment of the wrists as being unable to lift heavy objects or use a screwdriver. Range of motion testing for both wrists during the January 2015 and October 2015 VA examinations was normal in all ranges and the Veteran was able to perform repetitive use testing with no additional loss of motion; and there was no objective evidence of pain on weight-bearing; no tenderness to palpation observed; no reported flare ups; full muscle strength with no muscle atrophy; and no ankylosis. The December 2020 VA examination showed functional loss in the form of slightly reduced palmar flexion, dorsiflexion and ulnar deviation in both wrists that contributed to functional loss, such that the Veteran cannot flex or extend the wrist normally. It also showed bilateral wrist pain caused functional loss in all ranges of motion and on weight-bearing, non-weight bearing and during flare ups, but without any additional loss of motion; and there was no loss of motion after repetitive use testing and no tenderness to palpation of the wrist joints. None of the VA examiners indicated use of a wrist brace.  

With respect to the service-connected PTSD, the Veteran underwent VA examinations in May 2015 and October 2015. The May 2015 VA examiner indicated his symptoms were productive of occupational and social impairment with deficiencies in most areas due to PTSD, while the October 2015 VA examiner indicated his symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The May 2015 VA examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. The examiner observed the Veteran made good eye contact, spoke clearly with no stuttering, loss of focus or reaching for words, and was capable of managing his own financial affairs. 

The October 2015 VA PTSD examiner indicated that the Veteran reported he had "failed out" of his university program at DeVry University where he was studying video game programming because he was not able to focus. The Veteran described barriers to employment as being extremely distracted all the time, his people skills were not what they used to be, and spacing out while completing activities. The examiner noted the Veteran related that his hobbies included video games, boxing and running and that he cannot run like he used to because of his knee and ankle problems but can play video games for hours and hours on a daily basis. 

The Veteran denied significant problems getting along with others; reported he becomes anxious when around crowds; reported he has some motivational issues cleaning the house but keeps his house clean; and denied problems with transportation, self-care, cooking, cleaning or financial management. Noted symptoms were depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Mental status examination showed the Veteran was alert and oriented in all spheres, mildly anxious, attentive, cooperative and appropriately groomed, and exhibited normal eye contact, normal speech, average intelligence, good insight, appropriate judgement, normal thought processes and normal thought content. 

The examiner's impression was that the Veteran's PTSD symptoms were mild.  Additionally, the examiner observed that the Veteran was cooperative with the evaluation but his presentation raised some concerns regarding symptom magnification, noting the Veteran described PTSD symptoms at a much higher degree of intensity than had reportedly been described in the past and within his medical records; that his reported degree of functional impairment appears to occur disproportionately to what may be expected based on his history; and that the Veteran denied some symptoms you would expect to be present, explaining that the Veteran related he has no problem playing war-related videogames despite his PTSD reportedly being related to engaging in drone attacks and seeing people being injured or killed based on his actions, and that if he were indeed so distressed by his actions to the point that he cannot focus, one would anticipate that relevant videogame content would be avoided or endured with a great degree of anxiety and discomfort. The examiner noted that no observable attention deficits were observed during the evaluation, despite his reporting this to be a significant issue for him. The examiner remarked that most of the Veteran's self-reported difficulties related to struggling in his advanced school curriculum, and it seems likely that there are several other vocational or educational pursuits at which he would be successful. 

The examiner opined that, based on all of the currently available information, the Veteran's maximum remaining ability to perform and sustain work-related functions is mildly limited by his mental health difficulties alone. He explained that no severe or marked impairments were judged to be present; moderate impairments were judged to be present with respect to his ability to maintain attention and concentration for extended periods, to complete a normal work week without interruptions from psychologically based symptoms, and to sustain concentration and persistence in tasks; and that mild impairments were judged to be present with respect to his ability to perform at a consistent pace without an unreasonable number and length of rest periods, work in coordination with or proximity to others without being distracted by them, or respond appropriately to changes in the work setting. The examiner indicated that no impairments were judged to be present with respect to the Veteran's ability to sustain ordinary routine without supervision; to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; to accept instructions and respond appropriately to criticism from supervisors; to understand, remember, and carry out detailed instructions; to make judgments on complex work-related decisions; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; to understand, remember, and carry out simple instructions; to remember locations and work-like procedures; to make simple work-related decisions; to ask simple questions or request assistance; and to interact appropriately with the general public, travel to unfamiliar places or use public transportation.

With respect to the service-connected right ankle sprain and osteoarthritis, an October 2015 VA examiner determined the right ankle disability functionally impacted the Veteran's ability to perform occupational tasks by preventing work that requires hard physical labor (such as frequent heavy lifting, climbing or running) but had no impact on the Veteran's ability to perform work that required mild to moderate physical effort or was sedentary. Range of motion testing of the right ankle during the examination was normal, and while pain was noted with dorsiflexion, there was no evidence of pain with weight bearing, no tenderness to palpation of the joint or associated soft tissue and no crepitus, the Veteran was able to perform repetitive use testing with no loss of function or range of motion including after repetitive use, and there was no reduction in muscle strength, no atrophy, no ankylosis, and the Veteran did not use any assistive device.

With respect to the service-connected tinnitus, a February 2015 VA examiner determined that the Veteran's tinnitus did not functionally impact the Veteran's ordinary condition of daily life, including ability to work. 

An October 2015 VA examiner determined the service-connected sleep apnea did not functionally impact the Veteran's ability to work and that there were no current findings, signs or symptoms attributable to sleep apnea. The examiner indicated the Veteran uses a CPAP machine daily, reported improvement in symptoms and was not prescribed continuous medication for treatment.  

An October 2015 VA examiner determined the service-connected right knee strain did not functionally impact the Veteran's ability to perform any type of occupational task, such as standing, walking, lifting or sitting. The Veteran reported intermittent pain in that "every now and then [his] right knee gets irritated and will pop" and reported flare ups aggravated by prolonged movement and weight-bearing; however, he did not report having any functional loss or impairment of the right knee joint including after repeated use. Examination showed slightly reduced range of motion of the right knee that did not contribute to functional loss; and pain on flexion during the examination did not cause functional loss. Further, there was no objective evidence of pain with weight bearing or after repetitive use, no tenderness to palpation of the joint or associated soft tissue, no crepitus, no reduction in muscle strength, no ankylosis and no additional factors contributing to disability. The examiner noted that the Veteran walked with a normal gait and was able to dress/undress the lower extremities, mount/dismount the examination table; bend and don shoes and socks independently without apparent difficulty or signs of discomfort; and did not use any assistive device.

VA treatment records throughout the appeal period are consistent with the findings noted on the above VA examinations.  An April 2015 VA treatment record indicates the Veteran reported he was attending DeVry University for video game development and wants to own his own company developing video games. An April 2016 physical therapy treatment record show the Veteran reported engaging in physical activities, such as swimming, boxing, martial arts and strength training, and the clinician noted that the Veteran provided consistent pain ratings for his neck and back disabilities from moderate to maximally severe but that his movements did not correspond to his reported pain ratings, noting the Veteran did not demonstrate guarded movements or limited range of motion, demonstrated easy movement and change of positions for push-ups and abdominal crunches, and demonstrated small martial arts kick and boxing movements.  A February 2018 VA treatment record shows the Veteran reported he has been working out, even with his back pain, and has lost weight. A March 2018 VA treatment record shows the Veteran reported he is retired and makes video games. A June 2018 VA treatment record shows the Veteran reported his depression impacts him "a little" then goes away; reported issues with motivation and focus and failed too many of his classes to graduate and is done with school at this time; and is building a video game. A March 2019 VA treatment records shows the Veteran described his typical day as being highly variable, running errands and working out/strength training, and he reported he is retired, helps with childcare, and is physically active but pain limits his physical activity.

Thus, in light of this evidence, the Board finds that the Veteran was capable of performing the physical and mental acts required of employment consistent with his education and training throughout the appeal period. This determination is based on the Veteran's educational and occupational history, which includes a high school degree and approximately two years of college coursework, the Veteran's military duties and military training that involve technical skills and knowledge of network administration, systems management, and computer operations, which the Board notes are related to sedentary occupations, with "sedentary" defined as the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). It is also based on the weight of the medical evidence that shows the Veteran's service connected disabilities, when considered together, do not impact his ability to perform sedentary employment or low to moderate physical employment. In this regard, the Veteran's tinnitus, sleep apnea and right knee strain disabilities do not limit the Veteran's ability to engage in any substantial and gainful employment. While the evidence indicates bilateral wrist pain restricts occupational tasks that involve repetitive use of the wrists and hands or require heavy lifting, as noted by the December 2020 VA examiner, the record also shows the Veteran reported his hobbies include boxing, martial arts and video games, which he can play "for hours and hours" on a daily basis, thus suggesting that his wrist disabilities are not severe enough to preclude him from securing and maintaining substantial and gainful employment in most physical and sedentary occupations. While the evidence indicates that the right ankle disability prevents hard physical labor, such as frequent heavy lifting, climbing or running, as noted by the October 2015 VA examiner, the evidence also shows the Veteran reported he regularly spends time working out and running, which suggests his right ankle disability is not severe enough to preclude light to moderate physical employment or sedentary employment. 

While the Veteran's PTSD causes moderate impairment in his ability to maintain attention and focus for extended periods, to complete a normal work week without interruptions, and to sustain concentration and persistence in tasks, as noted by the October 2015 VA PTSD examiner, the examiner also determined that the reported PTSD symptoms may be magnified; the degree of functional impairment appeared disproportionate to what may be expected based on the Veteran's history; and no attention deficits were observed during the examination despite the Veteran reporting this was a significant issue for him. Significantly, the VA PTSD examiner determined that the Veteran's ability to perform and sustain work-related functions was only mildly limited by the mental health symptoms alone. Thus, although some of the Veteran's disabilities impact his ability to perform heavy physical labor and some sedentary employment, the Veteran's technical background and skills in programming, network administration, management and customer support would allow him to perform employment in physical occupations that do not require heavy physical labor, heavy lifting or prolonged climbing, and in a sedentary environment that does not involve prolonged, repetitive use of the hands and wrists. In this regard, the Board notes that the evidence does not reflect any impairment in the ability to respond appropriately to supervision, maintain socially appropriate behavior, carry out detailed instructions, keep to a schedule and maintain attendance, interact appropriately with the general public, or travel or use public transportation. 

The inability to perform a specific job does not in and of itself warrant a TDIU. While the Veteran asserted that he believes no employer would hire him due to his service-connected disabilities, the Board finds the medical evidence is more probative than the lay statements as to whether the Veteran is able to perform the physical and mental acts required of employment consistent with his education and background.

In sum, while the Board does not doubt that the Veteran's service-connected disabilities have some impact on his ability to work, the weight of the probative evidence does not show that he has been unable to obtain or maintain gainful employment consistent with his education and occupational background due to his service-connected conditions at any point during the appeal period, and the claim for entitlement to a TDIU is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

M. ESPINOZA

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. C. Birder

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.