Excerpt from decision below:
Initially, for VA to properly evaluate joint disabilities, it must obtain VA examinations that include range of motion measurements; notation
of when incoordination, weakened movement, and excess fatigability sets, if at all; whether there is pain on motion, and, if so, when on range of motion the pain sets in and whether it causes functional loss. See Correia v. McDonald, 28 Vet.App. 158, 169 (2016). VA examinations must
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also contain testing on repetitive motion, weight and nonweight-bearing positions, and active and passive motion. Id. Finally, examiners should, if feasible, portray the effect of functional loss for joint injuries in terms of degree of additional range of motion loss. Sharp, 29 Vet.App. at 31.”
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“The Board is required to assess the credibility, probative value, and persuasiveness of the evidence, including lay statements, and provide reasons for rejecting material evidence that is favorable to the claimant.
Bankhead v. Shulkin, 29 Vet.App. 10, 19 (2017).
The Board failed to explain why it discounted the probative value of Mr. Watkins’s lay assertions of symptoms that purportedly resulted in unemployability. The veteran asserted that, because of his right wrist symptoms, before he stopped working he could only use his hand two to
three hours per day; he had difficulty hammering, carrying, throwing, and lifting things; and he missed seven days of work per month. The sole statement in the Board’s reasons or bases regarding
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these assertions was that, “while the veteran contends that he is entitled to a TDIU because of his service-connected right wrist disabilities, the weight of the evidence shows that the veteran is unemployable because of non-service-connected disabilities.” R. at 5.2 This is hardly sufficient. If
the Board discounts the probative value of the veteran’s relevant statements, it must state the reasons why; it cannot simply ignore them.
Mr. Watkins also argues that the Board erred in not sufficiently discussing why he, in light of his vocational and educational attainments, was capable of substantially gainful employment.
When conducting a TDIU analysis, the Board must consider and discuss the “veteran’s education, training, and work history.” Pederson, 27 Vet.App. at 286. Here, the Board merely referenced the fact that the veteran’s prior occupation was as a cabinet maker and that he had a high school
education—that’s not a meaningful assessment of his employment and educational history in these circumstances. The veteran was a cabinet maker, an occupation which requires use of the hands, and he asserted that he could no longer perform the functions of such employment because of his right wrist. The Board offered no explanation, other than its conclusion that non-service-connected arthritis was the real culprit for his inability to work, as to why his right wrist disability was not of “sufficient severity to produce unemployment.” Id.; see Gleicher v. Derwinski, 2 Vet.App. 26, 28
(1991) (instructing the Board to determine whether a veteran with severe mental disabilities could still perform substantially gainful employment despite having an advanced education).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0983
EDWIN E. WATKINS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Edwin E. Watkins challenges a March 2017 Board decision that denied
referral for consideration of whether a total disability rating based on individual unemployability
(TDIU) was warranted on an extraschedular basis.1 He alleges that the VA examinations of record
were inadequate for assessing whether his osteoarthritis resulted in unemployability and that the
Board’s reasons or bases for denying referral for extraschedular TDIU consideration were deficient
for failing to address favorable evidence, including vocational and educational history, in
connection with his current disabilities. Because the Board’s explanation for its TDIU
determination was insufficient, the Court vacates the decision.
I. BACKGROUND
Mr. Watkins served in the Air Force from 1971 to 1975. He underwent a VA surgical
procedure to treat right wrist arthritis in 1998. That surgery resulted in complications that affected the nerves in his right hand and wrist. He worked mainly as a cabinet maker in a factory prior to the surgery but stopped in 1999, he contends, because of right wrist symptoms. Mr. Watkins also
1 The Board remanded a claim for a compensable rating for post-surgical scarring. The Court cannot review
this issue because it lacks jurisdiction over remanded matters. See Sharp v. Shulkin, 29 Vet.App. 26, 29 n.1 (2017).
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had non-service-connected osteoarthritis of the knees and ankles, which reportedly interfered with
his ability to work.
In November 1999, Mr. Watkins sought service connection for a right wrist disability. He
reported symptoms of stiffness, swelling, numbness, pain, abnormal sensation, weakness, as well
as the use of a brace, all of which interfered with work-related activities. Specifically, the veteran
recounted that, before he stopped working, he could only use his right hand for two to three hours
a day for such things as hammering nails, lifting, and throwing. He also reported that he missed
roughly seven days per month from work because of his right wrist problems. VA awarded service
connection for right ulnar neuropathy and assigned a 10% rating in March 2000.
In August 2005, Mr. Watkins applied for TDIU, indicating that he hadn’t worked since
1999 and referencing his right wrist. In developing the claim, VA obtained VA peripheral nerve
examinations and opinions in April 2002, September 2005, and October 2014, as well as a
November 2008 VA joints examination.
Taken together, the VA peripheral nerve examinations showed that the ulnar nerve
disability caused mild pain, sensory loss, and abnormal sensation. There was no neurologic deficit.
The April 2002 VA examiner indicated that the disorder resulted in no weakness or paralysis
because the nerve was purely sensory. The September 2005 VA examiner related Mr. Watkins’s
reports of stiffness, pain, and the use of a brace and observed that, “within the ulnar nerve
distribution, [the veteran] has good strength and sensation.” R. at 1248. The October 2014 VA
examiner noted mild pain and abnormal sensation in the right wrist. He opined that, although the
veteran had “mild symptoms of the right ulnar nerve,” it did not result in functional loss and that
his problems were mainly due to his osteoarthritis. R. at 2258.
The purpose of the veteran’s November 2008 VA joints examination was to “ascertain the severity of his . . . ulnar neuropathy and all manifestations relative to the right wrist.” R. at 808
(emphasis added). The examiner recounted the veteran’s medical history, including that he
“underwent a right carpal bone removal proximal row and then developed significant degenerative
changes in the capitate-lunate fossa [right wrist osteoarthritis],” and that he wore a brace for the
symptoms. Id. Palmar flexion of the right wrist was 20 degrees and dorsiflexion 40 degrees. Ulnar
deviation of the right wrist was limited to 30 degrees and radial deviation was normal. The
examiner observed that repetition did not increase pain or diminish flexibility or movement. He
opined that the “functional loss and limitations” in the right wrist were caused by the surgery for
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osteoarthritis and “not related to ulnar neuropathy.” R. at 809. Finally, he noted that the right wrist
brace interfered with the veteran’s daily activities.
Based in part on the November 2008 VA joints examination, VA granted service
connection for right wrist osteoarthritis, secondary to ulnar neuropathy, and assigned a 10% rating
in a January 2015 decision. The rating decision stated that service connection was “established
because this disability resulted from medical or surgical treatment.” R. at 200. The rating decision
also set out the applicable law, indicating that a 10% rating was warranted for painful motion of
the wrist and that a higher rating was not warranted because a 20% rating required x-ray evidence
of involvement of two or more major joints or two or more minor joint groups, with occasional
incapacitating exacerbations, and a 30% rating required evidence of favorable ankylosis in 20
degrees to 30 degrees of dorsiflexion. R. at 201; see 38 C.F.R. § 4.71a, Diagnostic Codes (DCs)
5003, 5214 (2018).
VA also obtained medical records concerning Mr. Watkins’s non-service-connected
osteoarthritis of the knees and ankles. A June 2000 VA vocational rehabilitation evaluation
reflected that, although the veteran’s right wrist ulnar nerve disability resulted in some decreased
grip strength, the primary disability affecting his ability to work was osteoarthritis of the knees
and ankles.
The Board relied on this evidence in the decision on appeal. It found that Mr. Watkins’s
right ulnar nerve disorder did not result in functional loss and, although his right wrist osteoarthritis
did, it wasn’t “sufficiently incapacitating as to render him unemployable.” R. at 7. The Board’s only
reference to Mr. Watkins’s assertions of various right wrist symptoms was that “while the veteran
contends that he is entitled to a TDIU because of his service-connected right wrist disabilities, the
weight of the evidence shows that the veteran is unemployable because of non-service-connected
disabilities.” R. at 5. Mr. Watkins appealed.
II. ANALYSIS
The veteran first argues that the VA medical examinations of record were inadequate for
the Board to conclude that referral for extraschedular TDIU was not warranted. Specifically, he
contends that none of the VA medical reports provided opinions regarding the functional loss due
to osteoarthritis. He also maintains that the Board failed to provide an adequate statement of
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reasons or bases because it didn’t address favorable lay evidence or relate his vocational and educational history to his current condition in its TDIU analysis.
Under VA regulations, a veteran may be assigned a TDIU rating when “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2018). To be eligible for a schedular TDIU rating, a veteran’s unemployability must be
caused by a single service-connected disability rated at least 60% or multiple disabilities yielding a combined rating of 70% or more, with at least one of those disabilities rated 40% or more. Id.
The regulation also directs VA to refer a case for extraschedular consideration if there’s a
reasonable possibility that the veteran’s service-connected disabilities, though not meeting the
requirements for a schedular TDIU rating, still render the veteran unemployable. 38 C.F.R.
§ 4.16(b). The central inquiry in a TDIU analysis is “whether a veteran’s service-connected
disabilities alone are of sufficient severity to produce unemployability.” Cantrell v. Shulkin,
28 Vet.App. 382, 387 (2017).
A medical examination or opinion is adequate when it is based on a review of the veteran’s
medical history and describes the disability in enough detail that the Board can issue a fully
informed decision regarding the claimed disability. Sharp v. Shulkin, 29 Vet.App. 26, 31 (2017).
However, VA adjudicators do not have the responsibility of answering the question whether a
veteran is employable within the meaning of a TDIU analysis. Pederson v. McDonald, 27 Vet.App.
276, 296 (2015) (en banc) (“Here, the Board impermissibly delegated to medical examiners its
responsibility to determine whether the appellant was employable . . . without exercising any
independent judgment.”). The Court reviews the determination that a medical examination is
adequate for rating purposes for clear error. Id. There is clear error when the Court has the firm
and definite conviction that a Board determination is mistaken, even if it is supported by some
evidence. Id.
The Court finds no clear error in the Board’s determination that the VA examinations and
opinions—including the November 2008 examination and opinion—were adequate for assessing
the disabling effects of the veteran’s osteoarthritis. Initially, for VA to properly evaluate joint
disabilities, it must obtain VA examinations that include range of motion measurements; notation
of when incoordination, weakened movement, and excess fatigability sets, if at all; whether there
is pain on motion, and, if so, when on range of motion the pain sets in and whether it causes
functional loss. See Correia v. McDonald, 28 Vet.App. 158, 169 (2016). VA examinations must
5
also contain testing on repetitive motion, weight and nonweight-bearing positions, and active and
passive motion. Id. Finally, examiners should, if feasible, portray the effect of functional loss for
joint injuries in terms of degree of additional range of motion loss. Sharp, 29 Vet.App. at 31.
The November 2008 VA examiner was directed to ascertain the severity of Mr. Watkins’s
ulnar neuropathy and “all manifestations relative to the right wrist.” R. at 808. The examiner
performed range of motion testing and addressed whether there was additional limitation of motion
or pain on repetition. The veteran’s range of motion was somewhat limited but only to the extent
that he warranted a 10% rating under schedular criteria. 38 C.F.R. § 4.71a, DCs 5003, 5215. The
VA examiner then concluded that there was functional loss in the right wrist because of the
osteoarthritis. There’s no deficiency in this examination under the applicable regulations. The
veteran’s only problem with this examination is that the “opinion did not address how his serviceconnected
osteoarthritis impacted his employability.” Appellant’s Br. at 7. This doesn’t render a
VA examination inadequate because the question of whether a veteran is unemployable is a legal
determination. It is the Board’s duty to assess the facts and determine whether a veteran’s condition
renders him capable of securing substantially gainful employment, not VA examiners. Pederson,
27 Vet.App. at 296. Here, the November 2008 VA examiner provided enough information to
apprise the Board of the state of Mr. Watkins’s right wrist osteoarthritis. The Board didn’t clearly
err in accepting this medical report as adequate.
The veteran’s arguments regarding the Board’s reasons or bases are more persuasive. He
alleges that the Board failed to adequately consider his lay assertions of right wrist symptoms and
discuss his vocational and educational history in relation to his service-connected disabilities. A
statement of reasons or bases is adequate when it allows a claimant to understand the precise basis
for the Board’s determinations and facilitates judicial review. Sharp, 29 Vet.App. at 31. The Board
is required to assess the credibility, probative value, and persuasiveness of the evidence, including
lay statements, and provide reasons for rejecting material evidence that is favorable to the claimant.
Bankhead v. Shulkin, 29 Vet.App. 10, 19 (2017).
The Board failed to explain why it discounted the probative value of Mr. Watkins’s lay
assertions of symptoms that purportedly resulted in unemployability. The veteran asserted that,
because of his right wrist symptoms, before he stopped working he could only use his hand two to
three hours per day; he had difficulty hammering, carrying, throwing, and lifting things; and he
missed seven days of work per month. The sole statement in the Board’s reasons or bases regarding
6
these assertions was that, “while the veteran contends that he is entitled to a TDIU because of his
service-connected right wrist disabilities, the weight of the evidence shows that the veteran is
unemployable because of non-service-connected disabilities.” R. at 5.2 This is hardly sufficient. If
the Board discounts the probative value of the veteran’s relevant statements, it must state the
reasons why; it cannot simply ignore them.
Mr. Watkins also argues that the Board erred in not sufficiently discussing why he, in light
of his vocational and educational attainments, was capable of substantially gainful employment.
When conducting a TDIU analysis, the Board must consider and discuss the “veteran’s education,
training, and work history.” Pederson, 27 Vet.App. at 286. Here, the Board merely referenced the
fact that the veteran’s prior occupation was as a cabinet maker and that he had a high school
education—that’s not a meaningful assessment of his employment and educational history in these
circumstances. The veteran was a cabinet maker, an occupation which requires use of the hands,
and he asserted that he could no longer perform the functions of such employment because of his
right wrist. The Board offered no explanation, other than its conclusion that non-service-connected
arthritis was the real culprit for his inability to work, as to why his right wrist disability was not of
“sufficient severity to produce unemployment.” Id.; see Gleicher v. Derwinski, 2 Vet.App. 26, 28
(1991) (instructing the Board to determine whether a veteran with severe mental disabilities could
still perform substantially gainful employment despite having an advanced education).
On remand, the Board must consider these relevant factors in connection with Mr.
Watkins’s current condition and lay assertions when adjudicating TDIU.
III. CONCLUSION
Accordingly, the Court VACATES the March 3, 2017, Board decision and REMANDS
the matter for readjudication consistent with this opinion.
DATED: December 28, 2018
2 The Secretary contends that the Board’s reasons or bases were adequate because it concluded that the veteran
was unemployable because of non-service-connected conditions. To make this determination, the Board relied on
numerous records. However, the record of proceedings before the Court does not contain most of these records. For
this reason, it was not possible for the Court to make a meaningful assessment of the Board’s conclusion on this point.
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VA General Counsel (027)
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