92 Decision Citation: BVA 92-10516 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-41 320 ) DATE ) ) ) THE ISSUE Entitlement to a restoration of a 40 percent evaluation for residuals of an injury to the right (major) brachial plexus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran served on active duty from June 1981 to December 1987. This matter came before the Board on appeal from a January 1990 rating action from the Waco, Texas, Regional Office (hereinafter referred to as RO) which reduced the evaluation for the residuals of a right brachial plexus injury from 40 percent to 20 percent disabling and the evaluation for the residuals of an injury to the right "deltoid pectoralis major muscles" from 40 percent to 30 percent disabling. The notice of disagreement was received on April 9, 1990. The statement of the case was issued on August 2, 1990. The substantive appeal was issued on December 13, 1990. In January 1991 the veteran appeared and gave testimony at a hearing conducted before a hearing officer at the RO. A rating action of May 1991 restored the 40 percent evaluation for the residuals of an injury to the right deltoid and pectoralis major muscles and continued the 20 percent evaluation for residuals of an injury to the right brachial plexus. Thereafter, neither the veteran nor his representative made any reference to the 40 percent evaluation assigned for the residuals of an injury to the right deltoid and pectoralis major muscles and, accordingly, this issue is not before the Board on appeal. The case arrived at the Board of Veterans' Appeals on August 29, 1991, and was docketed for appeal on August 30, 1991. The veteran has been represented during his appeal by the Disabled American Veterans, to which the file was referred. That organization submitted written arguments to the Board on November 21, 1991. The case is before the Board for appellate consideration at this time. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended, by and on behalf of the veteran, that the injury to his right brachial plexus has not improved and that the 40 percent rating formerly assigned for this disability should be restored. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the evidence supports the assignment of a 40 percent evaluation for the residuals of a right brachial plexus injury. FINDING OF FACT The veteran has a complete disruption of innervation of the right axillary nerve and marked disruption of innervation to the right pectoralis with marked loss of sensation over the posterolateral aspect of the right (major) upper arm. CONCLUSION OF LAW The residuals of an injury to the veteran's right (major) brachial plexus are currently 40 percent disabling according to the schedular criteria. 38 U.S.C. 1155, 5107(a); 38 C.F.R. 4.20, 4.7, Part 4, Diagnostic Codes 8599-8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes initially that we have found that the veteran's claim is "well grounded" within the meaning of 38 U.S.C. 5107(a). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C. 5107(a). Service medical records reveal that the veteran was injured in a motor vehicle accident in 1986 and incurred trauma to the right brachial plexus. After a physical examination in March 1988, a rating Board decision of May 1988 assigned a 40 percent evaluation for this injury, effective December 19, 1987. Following a July 1989 neurological evaluation, a rating action of August 1989 proposed to reduce the evaluation for the residuals of right brachial plexus injury from 40 percent to 20 percent disabling, and this reduction was effected by a January 1990 rating decision which assigned a 20 percent evaluation effective May 1, 1990. A 20 percent evaluation is warranted for residuals of right brachial plexus injury if they result in mild incomplete nerve paralysis. A 40 percent evaluation is assignable for the residuals of an injury to the right brachial plexus if the evidence demonstrates they are equivalent to moderate incomplete paralysis. 38 C.F.R. Part 4, Diagnostic Code 8513. The veteran's most recent neurological examination of March 1991 and recent electromyographic studies reveal that he has total disruption of innervation by the right axillary nerve. Additionally, marked, though not complete disruption of innervation to the right pectoralis major was reported on the neurological evaluation of March 1991. In our opinion, injury of this extent is more aptly considered moderate in severity than mild. Accordingly, the residuals of the veteran's injury to the right (major) brachial plexus warrants a 40 percent evaluation. ORDER Restoration of a 40 percent evaluation for the residuals of a right (major) brachial plexus injury is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 ANTHONY FAVA CHARLES E. EDWARDS, M.D. H. H. CLARK (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.