Citation Nr: 0124899	
Decision Date: 10/18/01    Archive Date: 10/23/01

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 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 evaluation for Horner's 
syndrome with impaired accommodation currently evaluated as 
20 percent disabling.

3.  Entitlement to an increased 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

M. McBrine, Associate Counsel


INTRODUCTION

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

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

These matters return to the Board from an order by the United 
States Court of Appeals for Veterans Claims (Court), dated 
January 2001, which granted a joint motion for remand in this 
case, and vacated the prior Board of Veteran's Appeals 
(Board) decision.  That motion argued that the Board did not 
provide adequate reasons and bases for its decision not to 
consider an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1) in this case.

Further, that motion also requested that, if review of the 
record established that the appellant was entitled to any 
other VA benefit, such as entitlement to total disability 
rating based on individual unemployability (TDIU rating), 
under 38 C.F.R. § 4.16, the VA should consider that as well.  
In this regard, the Board is of the opinion that a TDIU claim 
was not specifically raised in connection with the veteran's 
claims for increased-schedular ratings, or reasonably raised 
by the evidence of record.  In this context, the requirement 
in 38 C.F.R. § 3.155(a), for an informal TDIU claim, is met 
when the veteran submits evidence of a medical disability, 
makes a claim for the highest rating possible, and submits 
evidence of unemployability.  Roberson v. Prinicpi, 251 F.3d 
1378, 1384 (Fed. Cir. 2001).  Moreover, an increased rating 
claim includes a reasonably raised claim for TDIU when a 
veteran's schedular rating meets the minimum criteria of 
38 C.F.R. § 4.16(a), and there is evidence of current 
service-connected unemployability.  Norris v. West, 12 Vet. 
App. 413, 421 (1999).  Notably, however, the record reflects 
that the veteran, by and through his attorney, crossed-out 
the language in the January 1999 VA Form 9 that pertained to 
a TDIU claim.  Further, the record does not reflect any 
evidence indicating that the veteran is currently unemployed 
or unemployable by reason of his service-connected 
disabilities.  Cf. VAOPGCPREC 6-96, slip op. at 15-16, 61 
Fed. 66,749 (1996).  In any event, in light of the high level 
of compensation that the veteran is currently receiving, the 
claim for a TDIU rating is referred to the RO for appropriate 
action.

The Board has reviewed the entirety of the veteran's claims, 
however, since neither the Court order nor either of the 
moving parties expressed dissatisfaction with the portion of 
the prior Board decision dealing with schedular evaluations, 
that portion does not differ materially from the decisions 
rendered in the August 2000 decision.


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.

4. The evidence of record does not present such an 
exceptional or unusual disability picture, with such 
related factors as marked interference with employment or 
frequent periods of hospitalization, due solely the 
veteran's service-connected disabilities as to render 
impractical the application of the regular schedular 
standards.


CONCLUSIONS OF LAW

1. The schedular criteria for an evaluation in excess of 80 
percent for complete avulsion the left brachial plexus 
with paralytic anesthesia of the left upper extremity with 
phantom limb pain are not met.  38 U.S.C.A. §§ 1155, 5107 
(West 1991 & Supp. 2001); 38 C.F.R. §§ 4.1, 4.7, 4.10, 
4.124a, Diagnostic Code (DC) 8513 (2001).

2. The schedular criteria for an evaluation in excess of 20 
percent for Horner's syndrome with impaired accommodation 
are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 
4.7, 4.20, 4.21, 4.84a, DC 6030 (2001).

3. The schedular criteria for an evaluation in excess of 10 
percent for paralysis of the left hemidiaphragm are not 
met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 
4.124a, DC 8210 (2001).

4. The criteria for submission of an extra-schedular 
evaluation are not met.  38 U.S.C.A. §§ 1155, 5107; 
38 C.F.R. § 3.321(b)(1) (2001).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Board notes that during the pendency of this appeal, the 
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 
106-475, 114 Stat. 2096 (2000), was signed into law.  38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp. 
2001).  This liberalizing law is applicable to this appeal.  
See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).  To 
implement the provisions of the law, the VA promulgated 
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) 
(to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a)).  The Act and implementing regulations essentially 
eliminate the concept of the well-grounded claim.  
38 U.S.C.A. § 5107(a) (as amended); 66 Fed. Reg. 45,620 (Aug. 
29, 2001 (to be codified as amended at 38 C.F.R. § 3.102).  
They also include an enhanced duty on the part of VA to 
notify a claimant of the information and evidence needed to 
substantiate a claim.  38 U.S.C.A. § 5103 (as amended); 66 
Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. 
§ 3.159(b)).  In addition, they define the obligation of VA 
with respect to its duty to assist the claimant in obtaining 
evidence.  38 U.S.C.A. § 5103A; 66 Fed. Reg. 45,620 (Aug. 29, 
2001) (to be codified at 38 C.F.R. § 3.159(c)).

The record reflects that by virtue of the rating decision 
dated October 1998, and Statement of the Case issued January 
1999, as well as the Board decision dated August 2000, the 
Joint Motion to Remand dated January 2001, and subsequent 
United States Court of Appeals for Veterans Claims (Court) 
Order to vacate and remand the August 2000 decision by the 
Board, the veteran and his representative were given notice 
of the information and medical evidence necessary to 
substantiate the claims.  Moreover, the RO has made 
reasonable efforts to obtain relevant records adequately 
identified by the veteran.  Indeed, it appears that all 
evidence identified by the veteran has been obtained and 
associated with the claims file.  In this regard, in June 
1998, the RO asked the veteran if he had received any recent 
treatment.  The veteran responded in June 1998 indicating 
that he had not received any recent treatment regarding his 
disabilities.  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 family 
doctor's name.  Also, the veteran was afforded VA 
examinations in June and July 1998, and the reports of those 
examinations have been associated with the veteran's claims 
folder.  Further, the veteran's service medical records were 
obtained and associated with the claims folder, and such 
records appear to be intact.  In addition, by a VA letter of 
March 2001, the veteran's representative was provided an 
opportunity to present additional argument and evidence in 
support of this appeal, but no response was received.  Thus, 
under the circumstances in this case, the veteran has 
received the notice and assistance contemplated by law.  
Adjudication of this appeal, without remand to the RO for 
initial consideration under the new law, poses no risk 
prejudice to the veteran.  See, e.g., Bernard v. Brown, 4 
Vet. App. 384, 394 (1993).  Therefore, the claims are ready 
to be reviewed on the merits.

Increased Ratings

In essence, the veteran asserts that his service-connected 
disabilities have become more severe, and thus he is entitled 
to an increased rating.

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 
(2000).  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 (2000). 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 (2000). 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 (2000).

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 (2000).

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 (2000). 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 
(2000).

The June and 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 hands, 
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 his 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 
performing computer telephone support for the past two and 
half years.  Cold weather, being ill, lack of sleep, or an 
injury to the arm can bring about the episodes of phantom 
pain.  He reported missing 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 (2000).  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 (2000).  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 (2000).  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 2000); 38 C.F.R. §§ 4.63, 3.350(a) (2000); 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 (2000); 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 (2000).  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 (2000).  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 June and 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, and 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 (2000) (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 (2000).  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 
(2000).  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 June and 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 (2000).  
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 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) (West Supp. 2001); Gilbert v. Derwinski, 1 
Vet. App. 49 (1990).

Under these circumstances, the Board finds that the record 
presents no medical basis for assignment of a higher 
evaluation on a schedular basis.  The Board also finds that 
the evidence of record does not present such an exceptional 
or unusual disability picture so as to render impractical the 
application of the regular rating schedule standards and to 
warrant assignment of an increased evaluation on an extra-
schedular basis.   See 38 C.F.R. § 3.321(b)(1) (2000).  There 
simply is no showing that any of the veteran's service 
connected disabilities, alone, have resulted in marked 
interference with employment (i.e., beyond that contemplated 
in the assigned evaluation).  In this regard, the Board 
specifically refers to the report of the veteran's 
examination dated June 1998, which indicates that the veteran 
was currently employed in computer phone support service, and 
that he had only missed a few days of work during the 
previous year due to his service connected disabilities.  The 
report of the veteran's examination dated July 1998 further 
indicates that the veteran has been employed as a computer 
technician for the past two and a half years, and although 
missing a few days in the past year due to illness, had no 
excessive absenteeism.  There is likewise no showing that the 
veteran's disability has necessitated frequent periods of 
hospitalization, or has otherwise rendered inadequate the 
applicable schedular standards.  In this regard, the veteran 
noted that he was not currently undergoing treatment for any 
of his conditions, and had not been treated for them for some 
time.  In the absence of evidence of such factors, the Board 
finds that the criteria for submission for assignment of an 
extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) 
are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); 
Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v 
Brown, 8 Vet. App. 218, 227 (1995).

For all the foregoing reasons, the veteran's claims for 
increased ratings must be denied.  In reaching this 
conclusion, the Board has considered the applicability of the 
benefit-of-the-doubt doctrine.  However, as the preponderance 
of the evidence is against the veteran's claims, that 
doctrine is not applicable in the instant appeal.  See 38 
U.S.C.A. § 5107(b) (West Supp. 2001); Gilbert v. Derwinski, 1 
Vet. App. 49, 55-57 (1991).


ORDER

An increased 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.

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

An increased evaluation in excess of 10 percent for paralysis 
of the left hemidiaphragm is denied.

Entitlement to an extra-schedular evaluation under 38 C.F.R. 
§ 3.321(b)(1) is denied.



		
	DEBORAH W. SINGLETON
	Member, Board of Veterans' Appeals