Citation Nr: 0020187	
Decision Date: 08/01/00    Archive Date: 08/09/00

DOCKET NO.  99-03 136	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUES

1. Entitlement to an increased schedular evaluation for 
complete avulsion of the left brachial plexus with 
paralytic anesthesia of the left upper extremity with 
phantom limb pain (minor) currently evaluated as 80 
percent disabling.

2. Entitlement to an increased schedular evaluation for 
Horner's syndrome with impaired accommodation currently 
evaluated as 20 percent disabling.  

3. Entitlement to an increased schedular evaluation for 
paralysis of the left hemidiaphragm currently evaluated as 
10 percent disabling.  


REPRESENTATION

Appellant represented by:	Richard A. LaPointe, Attorney




ATTORNEY FOR THE BOARD

L. McCain Parson, Associate Counsel


INTRODUCTION

The veteran had active military service from July 1986 to 
November 1988.   

These matters come before the Board of Veteran's Appeals 
(Board) on appeal from an October 1998 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Denver, Colorado. 

Effective March 1, 1999, the United States Court of Veterans 
Appeals changed its name to the United States Court of 
Appeals for Veterans Claims (hereinafter, "the Court").  


FINDINGS OF FACT

1. The complete avulsion of the left brachial plexus with 
paralytic anesthesia of the left upper extremity with 
phantom limb pain is characterized by residual dysfunction 
and disuse of the left upper extremity (i.e., no movement 
of the fingers, at the elbow, or at the shoulder of the 
arm).  There is atrophy of the deltoid, some atrophy of 
the pectoralis, and striking atrophy of the upper and 
lower arm and hand with contractures of the left arm.  
Phantom pain symptomatology occurs on an approximately 
once a month basis.  

2. Horner's syndrome with impaired accommodation is 
characterized by mild ptosis of the left eyelid; "okay" 
accommodation in both eyes; 20/20 corrected vision in the 
left and right eye; and normal facial sensation with no 
detectable difference in sweat on the two sides of the 
face.  Pupillary reaction on ophthalmology examination was 
4 and 2 [millimeters], respectively.  

3. The left hemidiaphragm is characterized by normal clinical 
examination and pulmonary function tests with 
insignificant clinical evidence at present of acute or 
chronic impairment or residual thereof.  Paralysis of the 
left hemidiaphragm was not shown on the most recent 
compensation and pension examination.  


CONCLUSIONS OF LAW

1. A schedular evaluation in excess of 80 percent for 
complete avulsion of the left brachial plexus with 
paralytic anesthesia of the left upper extremity with 
phantom limb pain is not warranted.  38 U.S.C.A. §§ 1155, 
5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.124a, 
Diagnostic Code (DC) 8513 (1999). 

2. A schedular evaluation in excess of 20 percent for 
Horner's syndrome with impaired accommodation is not 
warranted.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 
4.7, 4.20, 4.21, 4.84a, DC 6030 (1999).  

3. A schedular evaluation in excess of 10 percent for 
paralysis of the left hemidiaphragm is not warranted.  38 
U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 
8210 (1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In essence, the veteran asserts that his service-connected 
disabilities have become more severe.  A claim for an 
increased rating is generally well-grounded when a veteran 
indicates that he has suffered an increase in a service-
connected disability.  See 38 U.S.C.A. § 5107(a) (West 1991); 
Drosky v. Brown, 10 Vet. App. 251, 254 (1997); Proscelle v. 
Derwinski, 2 Vet. App. 629, 631 (1992); cf. Jones (Wayne) v. 
Brown, 7 Vet. App. 134, 137 (1994).  In June 1998, the RO 
asked the veteran had he received any recent treatment.  The 
veteran responded in June 1998 that he had not received any 
recent treatment regarding his disability.  During the 
neurologic examination in July 1998, the veteran reported 
that he had not been to a physician for quite sometime and 
did not recall his or her name.  The Board is satisfied that 
all relevant facts have been properly developed.  No further 
assistance to the veteran is required in order to comply with 
the duty to assist as mandated by 38 U.S.C.A. § 5107(a).  

In accordance with Schafrath v. Derwinski, 1 Vet. App. 589 
(1991), the Board has reviewed the medical records and all 
other evidence of record pertaining to the history of the (1) 
complete avulsion of the left brachial plexus with paralytic 
anesthesia of the left upper extremity and phantom limb pain 
(minor); (2) Horner's syndrome with impaired accommodation; 
and (3) paralysis of the left hemidiaphragm.  Accordingly, 
the Board has found nothing in the historical record that 
would lead to a conclusion that the current evidence on file 
is inadequate for rating purposes.  See 38 C.F.R. §§ 4.1, 4.2 
(1999).  Moreover, the Board is of the opinion that this case 
presents no evidentiary considerations that would warrant an 
exposition of remote clinical histories and findings 
pertaining to the disabilities at issue.  See Francisco v. 
Brown, 7 Vet. App. 55, 58 (1994); Powell v. West, 13 Vet. 
App. 31, 35 (1999) (all relevant and adequate medical data of 
record that falls within the scope of the increased rating 
claim should be addressed).  

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities which is based on the 
average impairment of earning capacity.  Separate diagnostic 
codes (DCs) identify the various disabilities.  See 38 
U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999).  When 
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 (1999).  When after careful 
consideration of all the evidence of record, a reasonable 
doubt arises regarding the degree of disability; such doubt 
shall be resolved in favor of the claimant.  See 38 C.F.R. § 
4.3 (1999).  



I. Left Brachial Plexus with Paralytic Anesthesia

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.  It is essential that the examination on which 
ratings are based adequately portray the anatomical damage, 
and the functional loss, with respect to all of these 
elements.  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 it may be due to pain, 
supported by adequate pathology and evidenced by the visible 
behavior of the claimant 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.  A 
little used part of the musculoskeletal system may be 
expected to show evidence of disuse, either through atrophy, 
the condition of the skin, absence of normal callosity or the 
like.  See 38 C.F.R. §§ 4.10, 4.40, 4.45 (1999).  

The complete avulsion of the left brachial plexus with 
paralytic anesthesia of the left upper extremity with phantom 
limb pain (minor) is currently evaluated as 80 percent 
disabling under diagnostic code (DC) 8513.  See 38 C.F.R. § 
4.124a (1999).  This is the maximum allowable benefit under 
this DC.  

In accordance with section 4.124a, the schedule of ratings 
for neurological conditions and convulsive disorders provides 
that with the exceptions noted, disability is rated in 
proportion to the impairment of motor, sensory, or mental 
function.  Complete or partial loss of use of one or more 
extremities is especially considered.  With the partial loss 
of use of one or more extremities from neurological lesions, 
rate by comparison with mild, moderate, severe, or complete 
paralysis of the peripheral nerves.  In this regard, DC 8513 
provides that complete paralysis of all radicular groups of 
the non-dominant hand (minor) is to be rated as 80 percent 
disabling.  Handedness for the purpose of a dominant rating 
will be determined by the evidence of record, or by testing 
on VA examination.  Only one hand shall be considered 
dominant.  The injured hand, or the most severely injured 
hand, of an ambidextrous individual will be considered the 
dominant hand for rating purposes.  See 38 C.F.R. § 4.69 
(1999).  

The July 1998 compensation and pension examinations (general 
medical and neurology) reflect that the complete avulsion of 
the left brachial plexus with paralytic anesthesia of the 
left upper extremity with phantom limb pain (minor) is 
characterized by residual dysfunction and disuse of the left 
upper extremity (i.e., no movement of the fingers, at the 
elbow, or at the shoulder of the arm).  The veteran reported 
that there had been no changes in his condition since the 
last evaluation.  The neurological examination noted that the 
veteran could shrug his shoulder lifting the shoulder upward 
and backward.  The shrug was asymmetrical due to the 
difference in the weight of the left arm.  The left arm was 
completely flaccid.  There was atrophy of the deltoid, some 
atrophy of the pectoralis, and striking atrophy of the upper 
and lower arm and hand with contractures of the left arm.  
The neurologist also noted that the phantom pain 
symptomatology occurred on an approximately once a month 
basis.  The veteran reported that he medicated the phantom 
pain once a week with Motrin.  The report of the general 
medical examination reflects that the veteran tucked the 
dysfunctional left arm into his pocket.  

On examination, the veteran sensed only very deep pressure in 
the arms, such as an intense squeeze that was perceived in 
the shoulder region as a peculiar sensation.  Sensation to 
pin, vibration, light touch, position and temperature 
sensation were all impaired in the [left] arm.  The 
neurologist noted that the serratus anterior muscle of the 
[left] arm had been spared; there was no winging of the 
scapula.  Varying degrees of passive range of motion was 
accomplished with the [left] fingers, wrist, elbow, and 
shoulder.  The neurologist concluded that the lesion was in 
the upper trunk nerve root and diffusely affected all muscles 
and sensory modalities in the arm.  Reflexes were absent in 
the left arm.  

While the veteran can no longer water ski or cook, the 
veteran plays football, basketball, and the drums with 
certain modifications, such as using his body to catch the 
football.  He is able to button his shirts one handed.  He 
cannot tie his shoes, so he tucks in the shoelaces or uses 
Velcro shoes.  When faced with tasks that require two 
handedness, he gets assistance.  He drives an automatic car.  
He does not cook.  He fixes things around the house with the 
assistance of his family.  He occasionally injures the arm 
because he has no sensation in it and has learned over the 
years to be careful with it and move in a way so as not to 
bump it.  

The veteran has been employed as a computer technician / 
computer telephone support for the past two and half years.  
He offers solutions to computer problems.  Cold weather, 
being ill, lack of sleep, or an injury to the arm can bring 
about the episodes of phantom pain.  He missed a few days 
this past year primarily due to phantom pain.  Otherwise, 
there had been no excessive absenteeism.  

As the veteran's left arm is not separated at the joints or 
amputated above the insertion of the deltoid, a 90 percent 
rating evaluation is not warranted.  See 38 C.F.R. § 4.71a, 
DC 5120 (1999).  The Board has considered whether the 
application of 38 C.F.R. §§ 4.123 for peripheral neuritis or 
4.124 for peripheral neuralgia would accord the veteran a 
higher schedular rate.  As in this case, the evaluation of 
the same disability or the same manifestations of a service-
connected disability under different diagnoses is to be 
avoided.  See 38 C.F.R. § 4.14 (1999).  Therefore, the Board 
notes that it is the intent of DC 8513, complete paralysis of 
all radicular groups, to account for peripheral neuralgia and 
peripheral neuritis (i.e., loss of reflexes, muscle atrophy, 
sensory disturbances, and pain).  See 38 C.F.R. § 4.124a, DCs 
8613-8713 (1999).  Accordingly, a review of the evidence in 
this case demonstrates that the 80 percent rate for complete 
avulsion of the left brachial plexus with paralytic 
anesthesia of the left upper extremity and phantom limb pain 
(minor) appropriately compensates the veteran for the present 
level of disability attributed to the complete paralysis of 
all radicular groups.  See 38 C.F.R. § 4.124a, DC 8513.  As 
reasoned previously, the veteran is receiving the maximum 
schedular rate of 80 percent for complete avulsion of the 
left brachial plexus with paralytic anesthesia and phantom 
pain of the left upper extremity (minor) under DC 8513.  The 
appeal for a higher schedular evaluation is denied.  

At this juncture, the Board also notes that the veteran is in 
receipt of special monthly compensation for loss of use of 
the left hand based on the fact that no effective function of 
the hand remains.  See 38 U.S.C.A. § 1114(k) (West 1991 & 
Supp 1999); 38 C.F.R. §§ 4.63, 3.350(a) (1999); see also 38 
C.F.R. § 4.40.  

Lastly, notwithstanding the fact that the veteran has a 
curvilinear scar in the left cervical-shoulder quadrant, a 
separate rating is not warranted for the "non disfiguring" 
well-healed 13 centimeter non-tender curvilinear scar.  The 
scar is not shown to be productive of any additional 
disability.  See 38 C.F.R. § 4.25 (1999); Esteban v. Brown, 6 
Vet. App. 259, 262 (1994).  


II. Horner's Syndrome with Impaired Accommodation 

 In view of the number of atypical instances, it is not 
expected that all cases will show all the findings specified 
for grades of disabilities.  Findings sufficiently 
characteristic to identify the disease and the disability 
therefrom, and above all, coordination of the rating with 
impairment of function will, however, be expected in all 
instances.  See 38 C.F.R. § 4.21 (1999).  Therefore, when an 
unlisted condition is encountered it will be permissible to 
rate under a closely-related disease or injury in which not 
only the functions affected, but the anatomical localization 
and symptomatology are closely analogous.  Conjectural 
analogies will be avoided, as will the use of analogous 
ratings for conditions of doubtful diagnosis, or for those 
not fully supported by clinical and laboratory findings.  See 
38 C.F.R. §§ 4.20, 4.27; see also Lendenmann v. Principi, 3 
Vet. App. 345, 349-50 (1992).  

Currently, the veteran's service-connected Horner's syndrome 
with impaired accommodation is rated by analogy under 38 
C.F.R. § 4.84a, DC 6030.  The diagnostic criteria provide 
that the current 20 percent rating evaluation is warranted 
for complete paralysis of accommodation.  This is the maximum 
allowable schedular benefit under this diagnostic code.  

The July 1998 compensation and pension examinations (i.e., 
general medical, neurology, and ophthalmology) reflect that 
the veteran wore contacts and eyeglasses.  The veteran's 
pupils were equal, round, and reactive to light and 
accommodation on the general medical examination.  The 
neurologist noted that the eyes had been dilated by 
ophthalmology and neither pupil was therefore reactive and 
their sizes were both 7 or 8 millimeters.  The neurologist 
noted that the veteran had Horner's syndrome involving mild 
drooping of the left eyelid and a small pupil on the left 
side.  The veteran reported that his left pupil was "always 
usually" small and did not affect his vision.  Closure of 
the eyelid was normal and puffing of the cheeks and smile, 
etc., was normal.  Facial sensation including temperature 
sensation was normal.  The neurologist reported that he could 
not detect any difference in sweat on the two sides of the 
face.  

On ophthalmologic examination, the corrected vision was 20/20 
for the left and right eye.  The veteran had normal disc, 
macula, and vessels on ophthalmoscopic examination.  The 
external examination of the eye reflects that the cornea, 
iris, lens, accommodation, contacts, lids, conjunctiva were 
okay in both eyes except for the barely perceptible ptosis in 
the left eye as compared to the right eye.  The pupillary 
reactions were 4 and 2 [millimeters], respectively.  The 
final diagnoses were Horner's syndrome and that accommodation 
was ok[ay].  

While DC 6019, unilateral ptosis, appears to be applicable in 
rating the Horner's syndrome, entitlement to a 30 percent 
rating evaluation under this DC is not warranted.  First, the 
veteran's ptosis of the left eye is not characterized by a 
wholly obscured pupil.  The ptosis is described as mild and 
barely perceptible with corrected visual acuity of 20/20 in 
both eyes.  See 38 C.F.R. § 4.84a, DC 6074 (1999) (i.e., a 30 
percent rate is warranted for vision in one eye of 5/200 and 
20/40 in the other eye).  Second, the unilateral ptosis is 
not characterized by severe scarring of the face, to include 
marked and unsightly deformity of eyelids, to warrant a 30 
percent rating evaluation under DC 7800.  See 38 C.F.R. § 
4.118 (1999).  Further, there is no evidence of record that 
demonstrates complete paralysis of the seventh (facial) 
cranial nerve (i.e., loss of innervation to facial muscles) 
to warrant a 30 percent evaluation under DC 8207.  See 38 
C.F.R. § 4.124a.  As a matter of fact, cranial nerves II 
through XII were characterized as grossly intact on the 
general medical examination, and facial sensation and 
temperature were normal on the neurology examination.  
Therefore, the Board concludes that the Horner's syndrome 
with impaired accommodation is appropriately rated as 20 
percent disabling under DC 6030.  See 38 C.F.R. §§ 4.7, 
4.84a.  The Board, again, notes that this is the maximum 
schedular evaluation available under DC 6030.  The appeal for 
a higher schedular evaluation is denied.  


III. Paralysis of the Left Hemidiaphragm

Currently, the veteran's service-connected paralysis of the 
left hemidiaphragm is rated in accordance with the diseases 
of the cranial nerves under 38 C.F.R. § 4.124a, DC 8210 
(1999).  According to DC 8210, which evaluates the tenth 
(pneumogastric, vagus) cranial nerve, the current 10 percent 
rating evaluation is warranted for incomplete paralysis that 
is moderate.  A 30 percent evaluation is warranted for 
incomplete paralysis of the vagus nerve that is severe.  
These evaluations are dependent upon the extent of sensory 
and motor loss to organs of voice, respiration, pharynx, 
stomach, and heart.  

The July 1998 VA compensation and pension examinations (i.e., 
general medical and neurology) reflect no known injuries to 
include the soft tissue and / ribs.  He is a non-smoker and 
denied shortness of breath.  The records did reflect 
diaphragmatic changes following the 1988 injury.  On 
examination, the veteran reported that he had no shortness of 
breath and/ or difficulty with activities, to include playing 
football and basketball.  On general medical examination, his 
respiratory rate was 12 and his inspiration equaled 
respiration (sic).  The chest was clear to auscultation and 
percussion throughout.  There were no S3, S4, jugular venous 
distention, heaves, bruits, or murmurs.  Bowel sounds were 
noted in all four quadrants.  There was no organomegaly or 
pain to palpation.  The diagnosis regarding the left 
hemidiaphragm reflects normal clinical examination and 
pulmonary function tests with insignificant clinical evidence 
at present of acute or chronic impairment or residual thereof 
- no current evidence of left hemidiaphragm paralysis (see x-
ray report).  The July 1998 x-ray report reflects 
hemidiaphragms are at a normal position.  The pulmonary 
function test results reflect normal spirometry and no 
obstructive or restrictive component.  

As the evidence of record is not reflective of incomplete 
paralysis of the vagus nerve that is severe; a 30 percent 
evaluation is not warranted.  As a matter of fact, the 
evidence of record reflects that there is no current evidence 
of left hemidiaphragm paralysis.  There is no indication that 
there is any sensory or motor loss to organs of voice, 
respiration, pharynx, stomach, or heart attributable to the 
paralysis of the left hemidiaphragm.  Further, as there is no 
indication of a rupture of the diaphragm with herniation 
under 38 C.F.R. § 4.73, DC 5324, the application of DC 7346 
for hiatal hernia is not warranted.  Simply, the evidence of 
record does not demonstrate persistently recurrent epigastric 
distress with dysphagia, pyrosis, and regurgitation, 
accompanied by substernal or arm or shoulder pain, productive 
of considerable impairment of health to warrant a higher 
rating for hiatal hernia.  See 38 C.F.R. § 4.115 (1999).  
Therefore, the Board determines that the paralysis of the 
left hemidiaphragm more nearly approximates the current 10 
percent rating evaluation under DC 8210.  The appeal for a 
higher schedular evaluation is denied.  


IV. Other considerations

The Board observes that the veteran specifically raised 
entitlement to increased schedular ratings in February 1998 
and January 1999.  After a comprehensive review of the 
assembled evidence, the Board has determined that the 
preponderance of the evidence is against the veteran's claims 
for higher schedular ratings for (1) complete avulsion of the 
left brachial plexus with paralytic anesthesia of the left 
upper extremity and phantom limb pain (minor); (2) Horner's 
syndrome with impaired accommodation; and (3) paralysis of 
the left hemidiaphragm, and the appeals are denied.  See 38 
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).  

In any event, the VA has an obligation under 38 U.S.C.A. § 
5103(a) (West 1991) to advise the veteran of the evidence 
necessary to complete his application for VA benefits.  The 
evidence of record indicates that the veteran is currently 
employed as a computer technician.  There is no history of 
excessive absenteeism attributed to the service-connected 
disabilities nor has the veteran asserted that he is 
unemployable.  The Board notes that a reference to individual 
unemployability was specifically deleted from the January 
1999 VA Form 9.  Thus, the veteran has not asserted 
entitlement to an extra-schedular rating under 38 C.F.R. § 
3.321(b)(1) (1999) nor has he asserted unemployability for 
benefits under 38 C.F.R. § 4.16 (1999).  In this case, the 
veteran is hereby notified that a preliminary review 
indicates that the evidence necessary for consideration of 
his claim on an extra-schedular basis is documentary and/ or 
lay evidence which relates to such factors as interference 
with his employment status (i.e., employment, personnel, and 
medical data, etc.), as well as competent medical evidence of 
frequent periods of inpatient care, due solely to the 
service-connected disabilities at issue.  See Spurgeon v. 
Brown, 10 Vet. App. 194, 197-98 (1997).  Accordingly, the 
Board views its discussion as sufficient to inform the 
veteran of the elements necessary to complete his application 
for increased VA benefits on an extra-schedular basis.  See 
Robinette v. Brown, 8 Vet. App. 69, 80 (1995).  














ORDER

A schedular evaluation in excess of 80 percent for complete 
avulsion of the left brachial plexus with paralytic 
anesthesia of the left upper extremity with phantom limb pain 
(minor) is denied.  

A schedular evaluation in excess of 20 percent for Horner's 
syndrome with impaired accommodation is denied.  

A schedular evaluation in excess of 10 percent for paralysis 
of the left hemidiaphragm is denied.  



		
	Deborah W. Singleton 
	Member, Board of Veterans' Appeals