Citation Nr: 0630239 Decision Date: 09/25/06 Archive Date: 10/04/06 DOCKET NO. 92-20 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an evaluation in excess of 100 percent for loss of use of both lower extremities due to multiple sclerosis. 2. Entitlement to an evaluation in excess of 40 percent for urinary incontinence due to multiple sclerosis. 3. Entitlement to an evaluation in excess of 30 percent for bowel incontinence due to multiple sclerosis. 4. Entitlement to an evaluation in excess of 30 percent for paresis of the left upper extremity due to multiple sclerosis. 5. Entitlement to an evaluation in excess of 20 percent for paresis of the right upper extremity due to multiple sclerosis. 6. Entitlement to an evaluation in excess of 10 percent for nystagmus. 7. Entitlement to a higher level of special monthly compensation. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Counsel INTRODUCTION The veteran served on active duty from May 1946 to November 1947. This case came before the Board of Veterans' Appeals (Board) on appeal of rating decisions rendered by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). In particular, he appealed a November 2001 rating decision granting a higher rate of special monthly compensation. He also appealed a June 2005 rating decision that evaluated the various manifestations of his service- connected multiple sclerosis. In December 2003 and December 2005, the Board remanded the case to the originating agency for further development. The case has been returned to the Board for appellate consideration. The Board notes that the veteran has been awarded service connection for nystagmus. In a VA examination report of April 2005, the examiner opined that the veteran also has other eye conditions that are likely due to multiple sclerosis. Thus, the matter of entitlement to service connection for eye disability, other than nystagmus, is referred to the originating agency for appropriate action. The issue of entitlement to a higher rate of special monthly compensation is addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. The veteran's service-connected loss of use of both lower extremities is currently evaluated at 100 percent disabling, the maximum allowable evaluation. 2. Since June 9, 2005, the veteran's service-connected urinary incontinence has necessitated the use of an appliance and the wearing of absorbent materials which must be changed every 2 hours. 3. Prior to June 9, 2005, the veteran's service-connected urinary incontinence did not necessitate the constant use of an appliance or the wearing of absorbent material which must be changed more than 4 times per day. 4. The veteran's bowel impairment is manifested by occasional leakage and incontinence necessitating the wearing of a pad; the disability has not been manifested by extensive leakage and fairly frequent involuntary bowel movements. 5. The veteran is right handed. 6. The veteran's paresis of the left upper extremity is manifested by no more than moderate incomplete paralysis. 7. The veteran's paresis of the right upper extremity is manifested by no more than mild incomplete paralysis. 8. The veteran has nystagmus. CONCLUSIONS OF LAW 1. The claim for a disability evaluation in excess of 100 percent for loss of use of the lower extremities lacks legal merit. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5110 (2005). 2. The criteria for a 60 percent rating for urinary incontinence from June 9, 2005, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b Diagnostic Code 7512 (2005). 3. The criteria for a rating in excess of 40 percent for urinary incontinence prior to June 9, 2005, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7512 (1993); 38 C.F.R. §§ 4.7, 4.115a, 4.115b Diagnostic Code 7512 (2005). 4. The criteria for a rating in excess of 30 percent for bowel incontinence have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.114 Diagnostic Code 7332 (2005). 5. The criteria for an evaluation in excess of 30 percent for paresis of the left upper extremity have not been met. 38 U.S.C.A. § 1155 (West 2005); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8513 (2005). 6. The criteria for an evaluation in excess of 20 percent for paresis of the right upper extremity have not been met. 38 U.S.C.A. § 1155 (West 2005); 38 C.F.R. §§ 4.74.124a, Diagnostic Code 8513 (2005). 7. An evaluation in excess of 10 percent is not warranted for nystagmus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.84a, Diagnostic Code 6016 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2005), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice required by the VCAA and the implementing regulation was provided in a letter mailed in January 2006, after the initial adjudication of the claims. The veteran was provided ample time to submit or identify pertinent evidence after notice was provided. By subsequent letter in March 2006, the veteran was provided notice of the type of evidence necessary to an effective date for higher disability ratings. The record reflects that VA assisted the veteran by obtaining service medical records and post-service treatment records. In addition, it afforded the veteran appropriate examinations addressing the severity of his service-connected disabilities. Neither the veteran nor his attorney has identified any available, outstanding evidence that could be obtained to substantiate any of these claims. The Board is also unaware of any such available evidence. In sum, the Board is satisfied that VA has complied with the duty to assist provisions of the VCAA and the implementing regulation. Following the completion of all indicated development of the record, the originating agency readjudicated the veteran's claims for higher disability evaluations. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. Therefore, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non prejudicial to the veteran. Evidentiary Background In accordance with 38 C.F.R. §§ 4.1, 4.2 (2005) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities, except as noted below. The veteran is seeking higher disability evaluations for loss of use of his lower extremities, urinary and bowel incontinence, paresis of the upper extremities, and nystagmus. By rating action in November 2001, the RO awarded special monthly compensation based on the loss of use of both feet with additional independent evaluations of 50 percent or more, effective from December 19, 1991. The RO also awarded special monthly compensation based on the loss of use of creative organ, also effective from December 19, 1991. The RO awarded a 100 percent rating for loss of use of both lower extremities, a 30 percent rating for paresis of the left upper extremity, a 20 percent rating for paresis of the right upper extremity, a 40 percent rating for urinary incontinence, a 10 percent rating for bowel incontinency, a 10 percent rating for nystagmus of the left eye, and a noncompensable rating for impotency all due to his multiple sclerosis. In April 2003, Dr. C. N. Bash, a private physician, reviewed the veteran's medical information and the November 2001 rating action. With regard to bowel and bladder incontinence, Dr. Bash noted that the veteran's wife had informed him by letter that the veteran could not control his urine and leaked urine. She also stated that he soiled his bed sheets with stools that she found in the morning when she made the bed. Dr. Bash, without examining the veteran, opined that the veteran had lost bladder sphincter control and had constant leakage of urine. He also felt that the veteran had lost bowel sphincter control and had constant leakage of stool. It was felt that the veteran had lost his ability to ambulate and should be rated at the paraplegia level. It was noted that the veteran was unable to care for his activities of daily living and needed help with bathing, personal needs, and daily schedule. A November 2003 outpatient treatment record notes that the veteran complained of a 2-week history of urinary frequency. He was noted to have spastic paraplegia with strength in the left lower extremity of 0/5 and strength of 1/5 in the right lower extremity. He had mild left grip weakness and hyperactive knee jerks. He had depressed ankle jerks. Impressions included diabetic neuropathy and urinary incontinence. In December 2003, he was seen with complaints of watering of his eyes for several days. He denied any redness, pain or change in vision. Objective examination revealed mild blepharitis. A urology consultation revealed that he veteran complained of experiencing urgency incontinence approximately 5 times a month. He also reported erectile dysfunction. He reported that he was not always able to reach the bathroom before starting to urinate. The veteran was afforded a VA general medical examination in April 2005 which included a review of the veteran's claims folders. The veteran was noted to be wheelchair bound and unable to stand without assistance. He had weakness in his left lower extremity, urinary incontinence, and occasional fecal incontinence. He has a home heath aid 8 hours a day five days a week. He needed assistance in cooking, shopping, dressing, and attending to his personal hygiene. He noted occasional red blood on toilet paper. The veteran was 5 feet 6 inches tall and weighed 156 pounds. His eyes were equal and reactive to light with intact extra ocular muscles. The report of an April 2005 VA brain and spinal cord examination notes that the veteran had no control of his bladder and had a 3-year history of bowel incontinence 1 to 2 times per weeks. He also had a 5 to 6-month history of intermittent brief episodes of blurred, but not double, vision. His balance had been poor for years and he used a wheelchair secondary to left lower extremity paralysis. He also had upper extremity paresis. The left-sided weakness was 7 to 8 years old. He required a full time attendant for activities of daily living including dressing, washing, and eating. He was alert and oriented times 3 with normal speech. Cranial nerves II to XII were grossly normal. His extra ocular muscles were intact. He had "4 beats nystagmus on left lateral gaze." Strength was 4/5 in the right upper extremity, 4-/5 in the left upper extremity, 4/5 in the right lower extremity, and 1/5 in the left lower extremity. Touch and pinprick sensation were okay. The veteran had full range of motions, but his deep tendon reflexes were weakened with absent ankle and knee jerks. The veteran had no psychiatric manifestations. The veteran was afforded a VA genitourinary examination in April 2005. He had no complaints of lethargy or weakness at that time. He had a good stream when urinating. He had no dysuria or hematuris. He had nocturia once a night. He wore pads 3 to 4 times a day due to urgency. He did not require catheterization. He denied recurrent urinary tract infections and had no history of renal colic/bladder stones, acute nephritis, or hospitalization for urinary tract problems. He had been treated for prostate cancer in the past. Vaginal penetration with ejaculation was not possible. It was felt that the veteran's urinary symptoms were due to his multiple sclerosis. The report of a VA rectum and anus examination conducted in April 2005 shows that the veteran had occasional bowel incontinence. He also had occasional red blood on toilet paper. He was not receiving any specific treatment for bowel or urinary incontinence. The examiner found no evidence of bleeding. Diagnosis was multiple sclerosis with intermittent fecal incontinence. During an April 2005 VA eye examination, the veteran reported a history of blepharitis with a prescription of artificial tears in the past. He also had a history of color blindness that was diagnosed when he tried to enlist in the Navy. While the veteran's claims folders contained references to diplopia in the 1960s, the examiner noted that the only eye examination he could find documented normal fusion. Treatment notes from the Brooklyn, New York, VA Medical Center (VAMC) in 2004 refer to mild adduction deficit, but not to a complaint of double vision. The veteran denied diplopia or pain on eye movement. He reported mild occasional irritation that was relived by artificial tears. He saw well with his glasses and denied problems with his vision. Eye examination the previous month revealed intraocular pressure (IOP) of 17/17. Visual acuity was corrected to 20/40 on the right and 20/30 on the left. The examiner noted that the examination showed unrestricted eye movement with mild, asymptomatic convergence insufficiency and end gaze nystagmus, causing no visual disability. Also noted were mild astigmatism and presbyopia with good corrected visual acuity, though slightly reduced in the right eye. Mild optic neuropathy on the right was suggested by optic nerve pallor (documented as early as 2001) and cupping. There was also an enlarged blind spot on the visual field with mild decreased best corrected acuity. This was most likely due to multiple sclerosis. By rating action in June 2005, the RO increased the disability evaluation for the veteran's bowel incontinence to 30 percent effective from December 15, 1998. The RO continued the ratings assigned for the veteran's loss of use of the lower extremities, urinary incontinence, paresis of the upper extremities, and nystagmus. A June 9, 2005, VA outpatient treatment record notes that the veteran complained of greater weakness and more falls. Until recently he had been able to stand with support to urinate; however, in the past several weeks urination had become more difficulty. His leg stiffness was making it difficult for his wife to care for him. He had left arm dysmetria with 1/5 strength. Strength in his right arm was 3/5. While he had urinary frequency, urgency, and leakage, he had no urinary tract infections. He was noted to have marked right and moderate left leg extensor/adductor spasticity. Strength in the left leg was 1/5 and strength in his right leg was 4/5, though slow and poorly controlled. VA medical records dated in August 2005 show that the veteran, who had been wheelchair bound for may years, complained of incontinence between voids and that he rarely felt that his bladder was full. He was on a catheter for drainage. It was noted that prior urodynamic study in December 2001 showed decreased bladder capacity and detrusor instability with partial bladder outlet obstruction due to an enlarged prostate. A September 2005, treatment record notes that the veteran reported difficulty with his condom catheter. Despite catheterizing himself 3 times per day, he was still incontinent. Other solutions were to change his adult diapers more frequently (once every 2 hours) or keep a bedpan or urinary pan close by. Similar findings are noted in subsequent outpatient treatment records. An October 2005 outpatient treatment record indicates that the veteran had been participating in therapy for the past few months. He found the therapy to be very effective and it had improved his ambulation and transfers. Strength of his right upper extremity was 5/5 and strength of his left upper extremity was 4/5. Strength in his hip flexors was 2/5 bilaterally. He was able to ambulate a few steps with a rolling walker. Assessment was paraplegia secondary to MS. The veteran was prescribed a rolling walker. General Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2005). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Multiple sclerosis is rated under 38 C.F.R. § 4.124a, DC 8018. The minimum rating for this disorder is 30 percent. In order to warrant more than a 30 percent rating, the disorder may be rated on its residuals. 38 C.F.R. § 4.120 provides that neurologic disabilities are ordinarily rated in proportion to the impairment of motor, sensory or mental function, with special consideration of any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.123 provides that cranial or peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, which may at times be excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. Where 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. 38 C.F.R. § 4.7. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Loss of Use of Both Lower Extremities Loss of use of both feet warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5110. The veteran's service-connected loss of use of both lower extremities due to multiple sclerosis is currently evaluated as 100 percent disabling. This rating is the maximum evaluation possible for any service-connected disability. Accordingly, there is no basis to award an evaluation in excess of 100 percent for the veteran's loss of use of his lower extremities and his claim for a schedular rating in excess of 100 percent must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) [in a case where the law and not the evidence is dispositive, a claim must be denied because of the absence of legal merit or the lack of entitlement under the law]. In reaching this decision, the Board notes that the veteran has been awarded special monthly compensation based, in part, on the loss of use of his lower extremities. He has asserted that he should be afforded a higher level of special monthly compensation. This issue is addressed in the Remand below. Urinary Incontinence The veteran's urinary incontinence has been rated as analogous to cystitis. The rating criteria for chronic cystitis are found at 38 C.F.R. § 4.115b, Diagnostic Code 7512 (2005). Under that code, chronic cystitis will be rated as voiding dysfunction. The criteria for voiding dysfunction are found at 38 C.F.R. § 4.115a (2005). Voiding dysfunction is rated according to particular condition as urine leakage, urinary frequency or obstructed voiding. Urine leakage or incontinence requiring the wearing of absorbent materials which must be changed 2 to 4 times a day warrants a 40 percent rating. Urine leakage or incontinence requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating. 38 C.F.R. § 4.115a (2005). The Board notes that 38 C.F.R. § 4.115a states that situations in which diagnostic codes refer to specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Reviewing the pertinent evidence of record, the Board concludes that the veteran's urinary incontinence disorder is most appropriately evaluated on the basis of urinary frequency or urine leakage, as defined by 38 C.F.R. § 4.115a. After a review of the evidence, the Board finds that the criteria for a 60 percent disability rating are met for the veteran's urinary incontinence from June 9, 2005. A VA outpatient treatment record on that date shows that the veteran was prescribed an external urinary catheter for daily use. A subsequent treatment record in September 2005 shows that he had to change his absorbent material every 2 hours despite using his catheter 3 times per day. These findings are consistent with a 60 percent disability rating under the current version of Diagnostic Code 7512. A rating in excess of 60 percent is not provided for under the Rating Schedule. While the evidence supports a 60 percent rating for urinary incontinence from June 9, 2005, the evidence prior to that date does not warrant a rating in excess of 40 percent. The record shows the veteran's chief complaint was urinary incontinency, frequency, and urgency. While the veteran was noted to have the occasional need for catheterization prior to June 2005, the evidence does not show that he required the use of an appliance as contemplated by an increased rating. With respect to the wearing of absorbent material, there is no evidence of the use of an appliance or the wearing of absorbent material which must be changed more than 4 times a day prior to June 2005. Thus, the Board finds that this symptomatology does not reflect the current criteria required for an increase under 38 C.F.R. § 4.115a for a 60 percent evaluation prior to June 9, 2005. The Board has considered the provisions of 38 C.F.R. § 4.7, but finds that there is no question presented as to which of two or more evaluations would more properly classify the severity of the veteran's service-connected urinary incontinence. The Board would point out that the highest available rating for obstructed voiding and/or urinary tract infection is 30 percent. Thus, consideration of the veteran's disability under obstructed voiding or urinary tract infection is not warranted. Furthermore, for urinary frequency, the veteran is currently receiving the highest disability rating available, 40 percent, for a daytime voiding interval of less than one hour, or awakening to void 5 or more times per night. Bowel Incontinence The veteran's bowel incontinence has been rated as analogous to impairment of sphincter control of the rectum and anus. Under Diagnostic Code 7332, a complete loss of sphincter control warrants a 100 percent evaluation. With extensive leakage and fairly frequent involuntary bowel movements, a 60 percent evaluation is assigned. Occasional involuntary bowel movements, necessitating wearing of a pad warrants a 30 percent evaluation. Constant slight or occasional moderate leakage warrants a 10 percent evaluation. The evidence does not show that the veteran has extensive leakage and fairly frequent involuntary bowel movements. Despite complaints of blood on toilet paper during examination in April 2005, the veteran was no receiving any treatment for bowel incontinence and the examiner found no evidence of bleeding. It was opined that the veteran's fecal incontinence was intermittent. Similarly, the April 2005 neurological examination noted that the veteran's bowel incontinence occurred one or two times per week. While Dr. Bash opined in April 2003 that the veteran had lost bowel sphincter control and had constant leak of stool, the Board has found his opinion to be of limited probative value since he neither examined nor interviewed the veteran. The Board has found the report of the VA examination in April 2005 to be of far greater probative value since the examiner reviewed the veteran's pertinent medical history and also examined the veteran. Based on the above evidence, the Board concludes that the preponderance of the evidence shows the presence of no more than occasional involuntary bowel movements necessitating the wearing of a pad. The objective evidence does not support a finding that the veteran suffers from extensive leakage and fairly frequent involuntary bowel movements. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the service-connected bowel incontinence. Paresis of the Upper Extremities The RO evaluated the veteran's paresis of each upper extremity as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under that diagnostic code, incomplete paralysis of all radicular groups of the major extremity upper extremity warrants a 70 percent evaluation if severe, a 40 percent evaluation if moderate, and a 20 percent evaluation if mild. Incomplete paralysis of all radicular groups of the minor upper extremity warrants a 60 percent evaluation if severe, 30 percent if moderate, and 20 percent if mild. 38 C.F.R. § 4.124a, Diagnostic Code 8513. Incomplete paralysis of the upper, middle, or lower radicular group of the major upper extremity warrants a 50 percent evaluation if severe, 40 percent if moderate, and 20 percent if mild. Incomplete paralysis of the upper, middle, or lower radicular group of the minor upper extremity warrants a 40 percent evaluation if severe, 30 percent if moderate, and 20 percent if mild. 38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8511, 8512 (2005). A 50 percent evaluation is warranted for severe incomplete paralysis of the musculospiral nerve of the major upper extremity, and a 30 percent evaluation is warranted for moderate incomplete paralysis of the musculospiral nerve of the major upper extremity. A 40 percent evaluation is warranted for severe incomplete paralysis of the musculospiral nerve of the minor upper extremity, and a 20 percent evaluation is warranted for moderate incomplete paralysis of the musculospiral nerve of the minor upper extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8514 (2005). A 60 percent evaluation is warranted for complete paralysis of the ulnar nerve of the minor upper extremity, a 40 percent evaluation is appropriate for severe incomplete paralysis of the ulnar nerve of the minor upper extremity, and a 30 percent evaluation is warranted for moderate incomplete paralysis of the ulnar nerve of the major upper extremity. A 50 percent evaluation is warranted for complete paralysis of the ulnar nerve of the minor upper extremity, a 30 percent evaluation is appropriate for severe incomplete paralysis of the ulnar nerve of the minor upper extremity, and a 20 percent evaluation is warranted for moderate incomplete paralysis of the ulnar nerve of the minor upper extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2005). The record shows that the veteran is right handed and that his multiple sclerosis results in neurological impairment of his left upper extremity, which is manifested by weakness, difficulty with manipulation of his left hand, and difficultly performing rapid alternating movements. While he was noted to have left grip weakness in November 2003, this weakness was described as mild. Similarly, his left upper extremity muscle strength was 4-/5 during examination in April 2005 with full range of motion. While outpatient treatment record dated in June 2005 notes left arm dysmetria with 1 out of 5 strength, an outpatient treatment record dated in October 2005 notes 4/5 strength. In the Board's opinion, the medical evidence on file demonstrates no more than moderate incomplete paralysis of the radicular groups affecting the left (minor) upper extremity, or more than moderate incomplete paralysis of the left upper extremity under any other applicable diagnostic code. Accordingly, there is no schedular basis for the assignment of an evaluation in excess of 30 percent for paresis of the left upper extremity. For these reasons, the Board has concluded that the preponderance of the evidence is against the claim for a higher evaluation for paresis of the left upper extremity. The record also shows that the veteran's multiple sclerosis results in neurological impairment of his right upper extremity, which is manifested by weakness and difficultly performing rapid alternating movements. His right upper extremity muscle strength was 4/5 during examination in April 2005 with full range of motion. While an outpatient treatment record dated in June 2005 notes left arm dysmetria with 1/5 strength, strength in his right arm was 3/5. The most recent treatment record dated in October 2005 reveals 5/5 strength in the right upper extremity. In the Board's opinion, the medical evidence on file demonstrates no more than mild incomplete paralysis of the radicular groups affecting the right upper extremity, or more than mild incomplete paralysis of the right upper extremity under any other applicable diagnostic code. Accordingly, there is schedular no basis for the assignment of an evaluation in excess of 20 percent for paresis of the right upper extremity. For these reasons, the Board has concluded that the preponderance of the evidence is against the claim for a higher evaluation for paresis of the right upper extremity. Nystagmus The veteran contends that his service-connected nystagmus should be rated more than 10 percent disabling, as the symptoms and manifestations of the disability are more severe than presently rated. Diagnostic Code 6016 provides a 10 percent rating for central nystagmus. It does not provide any specific criteria for evaluating central nystagmus, other than its mere presence. The veteran has been diagnosed with nystagmus. Whether the veteran's nystagmus is the same as "central nystagmus," as contemplated by the rating schedule, the current 10 percent rating for the disability is the maximum allowable under the Diagnostic Code. The Board has considered whether there is any other schedular basis for allowing this claim but has found none. Extra-schedular Consideration With respect to each of these claims, the Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2005). The record reflects that the veteran has not required frequent hospitalizations for any of the disabilities and that the manifestations of the disabilities are those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from any of the disabilities is in excess of that contemplated by the assigned evaluations. Accordingly, the Board has concluded that referral of this case for extra- schedular consideration is not in order. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 100 percent for loss of use of the lower extremities due to multiple sclerosis is denied. A 60 percent disability rating for urinary incontinence due to multiple sclerosis is granted from June 9, 2005. A rating in excess of 40 percent for urinary incontinence due to multiple sclerosis prior to June 9, 2005, is denied. A rating in excess of 30 percent for bowel incontinence due to multiple sclerosis is denied. A rating in excess of 30 percent for paresis of the left upper extremity due to multiple sclerosis is denied. A rating in excess of 20 percent for paresis of the right upper extremity due to multiple sclerosis is denied. A rating in excess of 10 percent for nystagmus is denied. REMAND The VCAA and the pertinent implementing regulation are also applicable to the veteran's claim for a higher level of special monthly compensation. Although the originating agency sent the veteran a letter in January 2006 in an effort to comply with the notice requirements of the VCAA, that letter, while addressing his claims for higher ratings for his service-connected disabilities, did not specifically inform the veteran of the evidence and information necessary to substantiate his claim for a higher level of special monthly compensation. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C., for the following actions: 1. The RO or the AMC should send the veteran a letter providing the notice required under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b), to include notice that he should submit any pertinent evidence in his possession. 2. The RO or the AMC should undertake appropriate development to obtain copies of any pertinent records identified but no provided by the veteran. 3. If the RO or the AMC is unable to obtain any pertinent evidence identified by the veteran, it should so inform the veteran and his representative and request them to submit the outstanding evidence. 4. The RO or the AMC should also undertake any other development it determines to be indicated. 5. Then, the RO or the AMC should readjudicate the claim for a higher level of special monthly compensation based on a de novo review of the record. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any ultimate outcome warranted. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ____________________________________________ Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs