Citation Nr: 0309567 Decision Date: 05/21/03 Archive Date: 05/27/03 DOCKET NO. 99-15 606A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for residuals of stroke, incomplete paralysis of the right lower extremity, currently rated as 20 percent disabling. 2. Entitlement to an increased rating for residuals of stroke, incomplete paralysis of the right upper extremity, currently rated as 20 percent disabling. 3. Entitlement to an increased rating for residuals of stroke, incomplete paralysis of the right side of the face, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran retired in October 1992 after more than 20 years of active duty service. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 1999 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in December 2000. FINDING OF FACT 1. The veteran's incomplete paralysis of the right upper extremity, and incomplete paralysis of the right side of the face are moderately disabling. 2. The veteran's incomplete paralysis of the right lower extremity approaches moderately severe impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 40 percent for residuals of stroke, incomplete paralysis of the right lower extremity, have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8008, 8520 (2002). 2. The criteria for entitlement to a 40 percent rating for residuals of stroke, incomplete paralysis of the right upper extremity, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8008, 8511 (2002). 3. The criteria for entitlement to a rating in excess of 10 percent for residuals of stroke, incomplete paralysis of the right side of the face, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8008, 8207 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA shall assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by VA. The Board finds that the RO decisions provided to the veteran in this case have notified him of all regulations pertinent to increased rating claims and provided him additional opportunities to present evidence and argument in support of his claims. Further, the Board notes that the claims file contains relevant service and VA records, including an October 2002 VA neurological examination that assessed the severity of the veteran's service-connected stroke residuals. The veteran has not referenced any unobtained evidence that might aid his claims or that might be pertinent to the bases of the denial of his claims, and in an April 2001 letter the veteran was notified of the evidence he could submit and the evidence that VA would obtain. Quartuccio v. Principi, 16 Vet. App. 183 (2002). As such, the Board finds that VA has done everything reasonably possible to assist the veteran and that no further action is necessary. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159. In August 1994 the RO granted the veteran service connection for residuals of a stroke. On November 3, 1998, the veteran's claim for an increased rating was received. In the February 1999 rating decision on appeal, the veteran was denied an increased rating for residuals of a stroke. During the course of the appeal, by a January 2003 RO decision, the veteran's residuals of a stroke disability was separated into distinct disabilities and is currently rated as follows: residuals of stroke, incomplete paralysis of the right lower extremity, rated as 20 percent disabling (effective November 3, 1998); residuals of stroke, incomplete paralysis of the right upper extremity, rated as 20 percent disabling (effective November 3, 1998); and residuals of stroke, incomplete paralysis of the right side of the face, rated as 10 percent disabling. The veteran is right handed. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The veteran underwent a VA neurological examination in October 2002. It was noted that the veteran had suffered a left pontine stroke in 1994 and had residual right hemiparesis. The veteran indicated that residuals of the stroke included headaches, dizziness, and insomnia. He remarked that since the stroke his right hemiparesis had improved "only 50%." He still had weakness of the right side with decreased fine motor skills of the right hand. It was further noted that the veteran wore a short leg brace and required a cane for stability of ambulation. Examination revealed that cranial nerves II-XII appeared to be intact (except decreased pinprick along the entire right side of the face). I. Incomplete paralysis of the right lower extremity and right upper extremity The RO has evaluated the veteran's right lower extremity disability under Diagnostic Codes 8008-8520. Under Diagnostic Code 8520 (sciatic nerve), a 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Diagnostic Code 8520. The veteran's right (major) upper extremity disability is rated under Diagnostic Codes 8008-8511. Under Diagnostic Code 8511, a 20 percent evaluation may be assigned for mild incomplete paralysis of the middle radicular nerve group of the major upper extremity. A 40 percent evaluation requires moderate incomplete paralysis. A 50 percent evaluation requires severe incomplete paralysis. A 70 percent evaluation requires complete paralysis with adduction, abduction and rotation of the arm, flexion of the elbow, and extension of the wrist lost or severely affected. Diagnostic Code 8511. Under Diagnostic Code 8008, a 100 percent evaluation is assigned for six months following the occurrence of the thrombosis. Thereafter, the disability is rated according to its residuals, with a minimum evaluation of 10 percent provided under Diagnostic Code 8008. The Board observes that the October 2002 VA examiner indicated in the "Impression" section of the examination that the veteran's right hemiparesis was "mild to moderate." While the examiner noted only "mild" weakness of the right upper extremity, the examiner has indicated that the veteran does have decreased fine motor skills of the right hand, especially for repetitive movements. It was noted that the decreased fine motor skills limited the veteran's activities. The examiner also stated that the veteran had mild to moderate weakness of the right lower extremity with significant weakness of the right foot. The Board finds that the veteran's residuals of stroke, incomplete paralysis of the right upper extremity, have been described, when read in the light most favorable to the veteran, as being moderate. As such, a rating of 40 percent for residuals of a stroke, incomplete paralysis of the right upper extremity, is warranted. Although the examiner's comments and findings do not unequivocally suggest severe impairment, the fact remains that the veteran apparently requires the use of leg brace on a more or less persistent basis. He has reported having fallen. Accordingly, with resolution of reasonable doubt, right lower extremity impairment may be said to be closer to moderately severely disabling as a practical matter. II. Entitlement to an increased rating for residuals of stroke, incomplete paralysis of the right side of the face, currently rated as 10 percent disabling. The veteran's residuals of a stroke, incomplete paralysis of the right side of the face, are currently rated as 10 percent disabling pursuant to Diagnostic Codes 8008-8207. Pursuant to Diagnostic Code 8207, which provides the rating criteria for paralysis of the seventh (facial) cranial nerve, a 10 percent evaluation is warranted where there is moderate, incomplete paralysis. A 20 percent evaluation is warranted where there is severe, incomplete paralysis. The maximum 30 percent evaluation is warranted where there is complete paralysis. It is noted that the criteria is dependent upon relative loss of innervation of facial muscles. The Board notes that a rating greater than 10 percent for incomplete paralysis of the right side of the face would require findings of severe incomplete paralysis or complete paralysis of the seventh (facial) cranial nerve. However, findings from the October 2002 VA neurological examination revealed that while the veteran had decreased pinprick along the entire right side of the face, he had only a minimal to mild weakness of the right face (lower face). No visual field defect was noted, and extraocular movements were full. There was no indication that the veteran's speaking ability was impacted by the right side facial paralysis, and the veteran has indicated that his slurred speech had improved "at least 90%." In short, as severe incomplete paralysis or complete paralysis of the seventh cranial nerve has not been shown, the preponderance of the evidence is against a rating in excess of 10 percent for residuals of stroke, incomplete paralysis of the right side of the face. III. Conclusion In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule. This case, however, does not present such a state of balance between the positive evidence and the negative evidence to allow for more favorable determinations. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that, in this case, the disability picture is not so exceptional or unusual as to warrant an evaluation on an extraschedular basis. For example, it has not been shown that any of the veteran's disabilities, alone, have resulted in frequent hospitalizations or caused a marked interference in the veteran's employment as a counselor. The Board is therefore not required to refer this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). ORDER A rating of 40 percent for residuals of stroke, incomplete paralysis of the right lower extremity, is granted. A rating of 40 percent for residuals of stroke, incomplete paralysis of the right upper extremity, is granted. A rating in excess of 10 percent for residuals of stroke, incomplete paralysis of the right side of the face, is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.