Citation Nr: 22016391 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-09 194 DATE: March 22, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of a ganglion cyst removal on the left wrist is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. The residuals of ganglion cyst removal do not manifest in three or four scars that are unstable or painful, or ankylosis or the functional equivalent to ankylosis. 2. Service-connected disability does not preclude securing and following substantially gainful employment consistent with educational and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a ganglion cyst removal on the left wrist are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, 4.114, 4.118. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.10, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1952 to June 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board remanded this matter for additional development. The Board then denied the claims in a July 2020 decision the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). CAVC issued an October 2021 Order granting an October 2021 Joint Motion for Remand (JMR), vacating the July 2020 Board decision and remanding the issues back to the Board. Left wrist The Veteran is service-connected for residuals following the removal of a ganglion cyst on the left wrist, including a scar. The disability is rated under Diagnostic Code 7819-7804. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 7819, for benign neoplasms, indicates that this disability should be rated as a scar under Diagnostic Codes 7801-7805, or as impairment of function. Amendments to the criteria for rating disabilities of the skin were published in July 2018. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). The amendments were made effective as of August 13, 2018, and apply to claims, such as the Veteran's, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. Diagnostic Codes 7801-7804 (before and after the 2018 amendments) provide for compensable ratings for scars that are deep (as opposed to superficial) affecting areas of at least 6 square inches (39 square centimeters); for superficial scars affecting areas greater than 144 square inches (929 square centimeters); and for scars that are painful or unstable. Under Diagnostic Code 7805, which was substantively unchanged by the 2018 amendments (at least as they apply to the Veteran's case), any disabling effects of scars not considered in a rating under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code. As to a compensable evaluation under Diagnostic Code 7801 or Diagnostic Code 7802, the scar of the Veteran's left wrist has not been shown to affect an area or areas of at least 6 square inches (39 sq. cm.). Nor has the evidence indicated a scar that is adherent to underlying soft tissue. Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. Note (2) under Diagnostic Code 7804 provides that provides that a scar or scars that is both unstable and painful on examination may be assigned an additional 10 percent rating. See 38 C.F.R. § 4.118, Diagnostic Code 7804. A May 2017 VA examiner noted a scar on the Veteran's left hand that measured 1 cm in length and.1cm in width that was neither painful nor unstable. January 2018 and March 2019 VA examiners noted a scar on the left wrist that was 5.5 cm in length and .5 cm in width. As the evidence indicates that the Veteran does not have three or four scars that are unstable or painful, a 20 percent disability rating under Diagnostic Code 7804 is not available. Regarding the Veteran's functional impairment, Diagnostic Code 5215 is used to rate limitation of motion of the wrist. Under Diagnostic Code 5215, the sole and maximum evaluation of 10 percent is assigned for limitation of (major or minor) wrist motion, where dorsiflexion is less than 15 degrees, or palmar flexion is limited in line with the forearm. In this regard, in order to warrant a rating in excess of 10 percent, ankylosis of the wrist must be shown. Specifically, Diagnostic Code 5214 provides that where there is ankylosis of the wrist that is favorable in 20 degrees to 30 degrees of dorsiflexion, a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity is warranted. Where there is ankylosis of the wrist in any other position, except favorable, a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity is warranted. Where there is ankylosis of the wrist that is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation, a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity is warranted. 38 C.F.R. § 4.71a. 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). VA treatment records indicate that the Veteran was treated for left wrist pain with pain medication and a splint. A January 2017 X-ray showed mild osteopenia and an April 2017 VA primary care note indicates that the Veteran has carpal tunnel syndrome in her left wrist and that she was doing well with bracing and pain medication. The Veteran underwent VA examinations in May 2017, January 2018, and March 2019. VA examinations showed that the Veteran's right hand was her dominant hand and that her left wrist had abnormal range of motion but did not show ankylosis. The Veteran also reported wearing a brace and using medication to treat her wrist pain, and that her pain increases with increased use and changes in the weather. The January 2018 and March 2019 VA examiners indicated that the Veteran used a brace constantly to help with pain and increase strength, while the May 2017 VA examiner reported that the Veteran regularly used a brace to treat pain. The May 2017 VA examiner noted that the Veteran had decreased muscle strength but opined that it was due to age and not her service-connected disability. The January 2018 VA examiner also noted reduced muscle strength in the Veteran's left wrist, and the March 2019 VA examiner noted reduced muscle strength that was due to her service-connected disability. The Board recognizes that the VA examinations of record do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016), however, as the Veteran has received the highest possible rating without ankylosis, the Board finds that remanding for another examination which complies with Correia would not benefit the Veteran, particularly as there are no medical or lay reports of ankylosis in the Veteran's VA treatment records. The Board has considered whether a rating under Diagnostic Code 5214 is warranted. But all VA examinations of record show that there is no ankylosis of the left wrist. Although the March 2019 VA examiner indicated that that the Veteran had "[l]ess movement than normal due to ankylosis, adhesions, etc." on the left wrist, the March 2019 VA examiner also noted that the Veteran's abnormal movement was due to "Other," and specifically found that there was no ankylosis of the left wrist. The Veteran has argued that wearing a brace "completely immobilizes" her left wrist, however, the Veteran supports this argument with a May 1976 statement. The statement indicates that the Veteran's use of her left hand is "very limited" when she is wearing bandages. The Board also recognizes that a May 1970 rating decision indicates that the a plaster mold was applied "for immobilization purposes" after the Veteran underwent a surgery in December 1969. Nevertheless, neither the May 1976 statement nor the May 1970 rating decision are probative as to the current severity of the left wrist disability. The statement and rating decision were completed more than 40 years ago, long before the Veteran's left wrist disability was service connected and well outside of the period of appeal. The Veteran also reported that on three different occasions she suffered from "what appeared to be temporary paralysis" of her left wrist. See May 2017 NOD. While the Veteran may have believed that she experienced "temporary paralysis," there is no evidence in the record indicating that the Veteran is competent to diagnose her symptoms as "temporary paralysis" as the question is medically complex, as it requires knowledge of the interaction between multiple body systems and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In summary, ankylosis, or the functional equivalent of ankylosis, is not shown in any VA examination, lay report, or the Veteran's VA treatment records during the period of appeal. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). Thus, a rating under Diagnostic Code 5214 is not warranted. Based on the foregoing, the Veteran's claim for entitlement to a disability rating in excess of 10 percent for a left wrist disability is denied. TDIU The Veteran claims that she is entitled to a TDIU because she is unable to secure and follow a substantially gainful occupation due to her service-connected disability. See Application for TDIU, October 2019. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disability alone is of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The term unable to secure and follow a substantially gainful occupation has an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). 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. Id. The non-economic component includes consideration of the following: 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. Id. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned 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. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to TDIU for the period when the 100 percent rating is in effect. Regardless, the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation under 38 U.S.C. § 1114 (s)). For the purposes of 38 U.S.C. § 1114 (s), a combined 100 percent rating does not satisfy the requirement of "a service-connected disability rated as total," whereas a 100 percent rating assigned pursuant to a TDIU would satisfy that requirement. Bradley, 22 Vet. App. at 290-93. For the entire period of appeal, the Veteran's sole service-connected disability was her left wrist disability which has been rated as 10 percent disabling. During this period, the Veteran did not have either 1) one service-connected disability rated at 60 percent or 2) two or more disabilities with at least one disability rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Moreover, the Veteran does not have multiple service-connected disabilities from the same body system or from a common etiology. Therefore, the Veteran did not meet the schedular TDIU requirements. Id. Entitlement to a TDIU may still be granted on an extraschedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), such as the case here, rating boards can refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16 (b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for schedular TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions which would have justified a TDIU. See 38 C.F.R. § 3.341 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board recognizes that it cannot assign an extraschedular TDIU evaluation in the first instance under § 4.16(b). The Board's analysis is limited to merely granting or denying referral for extraschedular consideration. Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). The Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). The initial decision whether to remand for extraschedular referral to the Director of Compensation Service under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities. The Board's initial finding that extraschedular referral for TDIU is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the ultimate decision to award an extraschedular TDIU rating. Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, if the Director of Compensation denies an extraschedular TDIU rating under 38 C.F.R. § 4.16 (b), the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the Veteran is unemployable by reason of his or her service-connected disabilities. Id. Only after the Director of Compensation has determined that an extraschedular evaluation under § 4.16(b) is not warranted does the Board then have jurisdiction to decide the TDIU claim on the merits. Here, the Board must make the initial determination as to whether referral to the Director of Compensation for an extraschedular TDIU rating under § 4.16(b) is warranted. After weighing the medical and lay evidence of record, the Board finds that the criteria for referral of TDIU on an extraschedular basis are not met. See 38 C.F.R. § 4.16 (b). The evidence does not indicate that the Veteran was unemployable by reason of her service-connected disability. Ray, 31 Vet. App. at 62-66. The record indicates that the Veteran was last employed in January 2017 by a daycare center. The Veteran indicated that the daycare center is no longer in business. See VA Form 21-8940, Received October 2019. The Veteran did not provide any other previous employment or education information in her application for TDIU. Other documents in the claims file indicate that the Veteran attended cosmetology school and that she enrolled in business administration courses. The Veteran reported in a May 2017 VA examination that she was let go from her last job at a daycare center due in part to her left wrist pain. The Veteran also reported in the May 2017 VA examination that she cannot lift much with her left hand due to her left wrist disability. In a January 2018 VA examination, the VA examiner described the Veteran's functional limitation related to employment by saying that she should avoid activity to aggravate the symptoms and use the left wrist as a helping wrist. A March 2019 VA examiner described the functional impact of the Veteran's left wrist disability indicating that she had difficulty gripping and lifting with her left hand due to increased wrist pain. The examiner issued an addendum in June 2019 indicating that the Veteran has pain with gripping and that recurrence of the ganglion cyst and arthritis make it painful to do physical work with the left hand and difficult to do lifting or work that requires heavy gripping (i.e., of tools), but that her left wrist disability would not preclude sedentary work that requires light use of the left hand. The Board finds that there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of her service-connected disability. The Board acknowledges the Veteran's repeated assertions that she is unable to work due to her service-connected wrist disability, but the evidence of record does not support the assertions. The Veteran reported in statements to VA healthcare providers that she was let go from her last job at a daycare center at least in part due to her wrist pain. However, the Veteran has not explained how her wrist pain would cause her to be fired from her job, and offers no corroborating statements from her employer, coworkers, or others, to support this allegation. The Board finds that the Veteran's unsupported allegation that she was fired from her last job due to her wrist pain is not persuasive. The Board finds that, at a minimum, the Veteran is capable of sedentary employment, particularly in a job that does not require heavy gripping or lifting with her left hand. The Veteran has some range of motion limitation and pain in her wrist which does impact her ability to work. VA examination reports indicate that the Veteran had difficulty gripping and lifting with her left hand due to her wrist disability. The March 2019 VA examiner opined that the Veteran's wrist disability does not preclude her from sedentary work that requires light use of the left hand. The examiner did not clarify how the Veteran's left wrist disability alone would preclude the Veteran from performing a non-sedentary job. Nonetheless, the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). The Veteran has completed coursework in cosmetology and business administration. While the Veteran has not provided her previous work history prior to working in a day care facility or her other educational and training background, this does not mean that the Veteran is precluded from securing or maintaining a sedentary job, and the Veteran has not provided any evidence or argument as to why she would be unable to do so. Considering the lay and medical evidence of record, the Board finds that the Veteran was not prevented from securing and maintaining substantially gainful employment in at least a sedentary job by her service-connected disability during this period of appeal. Accordingly, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (Continued on the next page) Entitlement to a TDIU is denied. 38 C.F.R. § 4.16. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.