Citation Nr: 0811460 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-23 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 40 percent for multiple sclerosis (MS) with impairment of the right lower extremity. 2. Entitlement to a rating in excess of 10 percent for multiple sclerosis (MS) with impairment of the right upper extremity. 3. Entitlement to a compensable rating for multiple sclerosis (MS) with impairment of the left lower extremity. 4. Entitlement to a compensable rating for multiple sclerosis (MS) with impairment of the left upper extremity. 5. Entitlement to a rating in excess of 10 percent for multiple sclerosis (MS) with episodes of urinary incontinence. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The veteran served on active duty from June 1976 to August 1976, and from September 1980 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted an increased rating to 40 percent for MS, effective August 27, 2002. A timely appeal was noted with respect to that rating. By rating decision dated November 2007, the RO continued a rating of 40 percent for MS with impairment of the right lower extremity and granted separate disability evaluations of 10 percent for MS with impairment of the right upper extremity and for MS with episodes of urinary incontinence. The United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. Thus, the issue remains in appellate status. A hearing on this matter was held before the undersigned Veterans Law Judge sitting at the RO on May 5, 2006. A copy of the hearing transcript has been associated with the file. In November 2006, the Board remanded this issue to the RO (via the Appeals Management Center (AMC)) for further evidentiary development. After completion of the requested development, the AMC returned the case to the Board for appellate review. In January 2008, evidence was received without a waiver of RO consideration. The newly submitted evidence consists of a the Social Security Administration (SSA) decision granting disability benefits to the veteran A review of the evidence indicates that the SSA's decision was based entirely upon information already made part of the claims folder and considered by the RO. It is essentially duplicative of evidence already of record; therefore, it is not necessary to remand the case for the RO to review the evidence in the first instance. See 38 C.F.R. § 20.1304 (2006). However, this evidence together with other evidence in the claims folder suggesting that the veteran has stopped working due to his MS could be construed as a claim for a total disability rating based on individual unemployability and that matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's MS with impairment of the right lower extremity is productive of no more than moderately severe impairment. 2. The veteran's MS with impairment of the right upper extremity is productive of no more than moderate impairment. 3. The veteran's MS with impairment of the left lower extremity is productive of no more than mild impairment. 4. The veteran's MS with impairment of the left upper extremity is productive of no more than mild impairment. 5. The veteran's MS with episodes of urinary incontinence is manifested by nocturia (nighttime voiding) 3 to 4 times per night. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for MS with impairment of the right lower extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.26, 4.124a, Diagnostic Codes 8018, 8520 (2007). 2. The criteria for a rating of 40 percent for MS with impairment of the right upper extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.26, 4.124a, Diagnostic Codes 8018, 8513 (2007). 3. The criteria for a rating of 10 percent for MS with impairment of the left lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.26, 4.124a, Diagnostic Codes 8018, 8520 (2007). 4. The criteria for a rating of 20 percent for MS with impairment of the left upper extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.26, 4.124a, Diagnostic Codes 8018, 8513 (2007). 5. The criteria for a rating of 20 percent for MS with episodes of urinary incontinence have been met. 38 U.S.C.A. § 1155 (West 2002) 38 C.F.R. §§ 4.115(a), Diagnostic Codes 8018, 7512 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated August 2003, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claim for an increased rating; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was essentially instructed to submit any evidence in his possession that pertained to his claim. According to Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008), in an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation; for example, competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information. In Sanders v. Nicholson, 487 F.3d 881, 889 (Fed.Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. Id. There must be a demonstration that there was no error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3rd Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The veteran has demonstrated an awareness of what is needed for a higher evaluation, most notably in his May 2006 hearing testimony. At that time the veteran testified as to the impact of his MS on activities of daily living and his inability to work because of his MS symptomatology. Actual knowledge is established by his statements demonstrating an awareness of what is necessary to substantiate the claim. See Vazquez-Flores, slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service medical records have been associated with the claims file. The veteran has been medically evaluated in conjunction with his claim. Pursuant to the Board's November 2006 remand, in January 2007 the RO requested the veteran's authorization to obtain his disability records from his former employer, the United States Postal Service. To date, the veteran has not provided the requested authorization. The duty to assist is not a one-way street. If the veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Since the veteran has declined to authorize VA to obtain the records of his disability application with the U.S. Postal Service, the Board is satisfied that the duties to notify and assist have been met. Legal Criteria Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Service connection for what was then termed an "ill-defined disease of the nervous system" was granted by rating decision dated March 1985, and a 10 percent rating was assigned from September 25, 1984. In October 1990, the previous diagnosis of "ill-defined disease of the nervous system" was recertified as multiple sclerosis. By rating decision dated September 2003, the veteran's disability evaluation for MS was increased to 40 percent, effective August 27, 2002. In a rating decision dated November 2007, the RO granted separate 10 percent ratings for MS with impairment of the right upper extremity, effective August 27, 2002, and for MS with episodes of urinary incontinence, effective May 5, 2006. The Board notes that separate and distinct manifestations attributable to the same injury or disease are to be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In this case, the veteran's extremities and genito-urinary function are separately and distinctly affected by his MS. Thus, each affected extremity or function is separately rated. MS is rated under Diagnostic Code 8018. The minimum rating for this disorder is 30 percent. In order to warrant a rating in excess of 30 percent, the disorder must be rated on its residuals. With some exceptions, disability from neurological conditions and convulsive disorders and their residuals may be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. Partial loss of use of one or more extremities from neurological lesions, such as those caused by MS, is rated by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. See 38 C.F.R. § 4.124a. Disability ratings for diseases of the peripheral nerves are based on relative loss of function of the involved extremity with attention to the site and character of the injury, the relative impairment of motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120. Ratings are further based on whether there is complete or incomplete paralysis of a particular nerve. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The manifestations of MS involving the veteran's lower extremities are best evaluated under Diagnostic Code 8520. Under this code, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve with foot drop and dangle, no active movement possible of the muscles below the knee, and weakened or lost flexion of the knee, is rated as 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The manifestations of the veteran's MS involving his upper extremities are best evaluated under Diagnostic Code 8513 (all radicular groups). Mild incomplete paralysis is rated as 20 percent disabling. Moderate incomplete paralysis of the lower radicular group is rated as 40 percent disabling (major) and 30 percent (minor). Severe incomplete paralysis is rated as 70 percent disabling (major) and 60 percent (minor). Complete paralysis is rated as 90 percent disabling (major) and 80 percent (minor). The manifestations of MS resulting in episodes of urinary incontinence may be evaluated as analogous to urinary frequency under 38 C.F.R. § 4.115a. This regulation states that a 20 percent rating is warranted for daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is warranted for daytime voiding interval less than one hour, or awakening to void five or more times per night. 38 C.F.R. § 4.115a. The Board notes that the words "slight," "moderate" and "severe" as used in these Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Increased Rating for MS with Impairment of the Right Lower Extremity The evidence reflects that the veteran's MS with impairment of the right lower extremity first manifested itself in 2002 as a right leg weakness. In particular, the veteran dragged his right foot upon walking. On VA examination in August 2003, decreased strength in hip flexion and extension was noted. The decrease in hip function negatively affected right knee flexion. Private and VA clinical notes dated from 2002 to 2006 indicated that the veteran's right lower extremity became progressively weaker. The veteran's right hip flexion and extension and ankle dorsiflexion and plantar flexion were particularly affected. The veteran began walking with a cane. There is no evidence that the veteran could not walk or that his muscles had begun to atrophy. An SSA examination dated August 2006 noted that the motor function of the veteran's right leg was 3/5. At that time, the range of motion of the veteran's hip was noted to be "normal." The examiner observed that the veteran had an abnormal gait and required a cane to walk fifty feet. The veteran received a second VA examination in July 2007. His right leg was noted to be significantly weak. His gait was abnormal and he was unable to lift his right leg from a chair without assistance. His balance had worsened and he required a wheelchair when traveling any prolonged distance. There was no reference to marked muscle atrophy, and in fact the veteran could still rise from his wheelchair without assistance and ambulate short distances with a cane. On review, the evidence does not support a finding that the veteran's right lower extremity is affected by severe incomplete paralysis with marked muscle atrophy. Thus, a rating in excess of 40 percent for MS with impairment of the right lower extremity is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. There are no applicable diagnostic codes that could afford the veteran a higher rating for his disability of the right lower extremity. Increased Rating for MS with Impairment of the Right Upper Extremity MS in the right upper extremity first manifested in February 2005 when a private clinician noted that motor function in the right upper extremity had decreased to 4/5. In February 2006, the veteran reported to the VA that he had shoulder pain and difficulty buttoning his shirts. Grip function in the veteran's dominant right hand was found to be below 10 percent and pinch function was only 50 percent. His fine motor coordination was slow. The veteran was given a buttonhook for dressing. In March 2006, a VA clinical note indicated that the veteran had "mild" numbness in the right upper extremity. His motor function was 4/5. On SSA examination in August 2006, motor function was also noted as 4/5. On VA examination in July 2007, the veteran had "mild" weakness of the right upper extremity. Shoulder abduction and hand grip were 4/5. There was no atrophy. Fine movements were noted to be slower than that in the left upper extremity. There was decreased touch and vibratory sense in the right hand. The evidence shows persistent and progressively worsening weakness in the right upper extremity. The veteran's dominant right hand has been affected by decreased grip and sensation, causing him to have to use an appliance for dressing. He also has decreased motor function in the right shoulder. On review, the Board finds that the veteran's MS with impairment of the right upper extremity is productive of moderate impairment. An increased disability evaluation to 40 percent, but no higher, under DC 8513 is warranted. As there is no evidence of symptomatology that is productive of complete paralysis or "severe" impairment, an increased rating under DCs 8510-8519 has not been shown. Increased Rating for MS with Impairment of the Left Lower Extremity Private and VA clinical notes documented the first manifestations of MS in the veteran's left lower extremity beginning in February 2005. These manifestations were mainly sensory in nature and consisted primarily of pain and decreased sensation. From February 2005 to February 2007, motor function was noted to be approximately 4/5. In February 2007, the veteran was hospitalized for an acute exacerbation of his MS symptoms with involvement of both lower extremities. The veteran complained of increased pain and weakness and decreased sensation. Although weakness of both extremities was noted, motor function of the left lower extremity was noted at 5/5. On VA examination in July 2007, mild decrease in tone of the lower left extremity was found. Motor function was noted to be "5-/5 throughout." There was no sensory loss or loss of reflexes. He could rise from a wheelchair without assistance. His gait was abnormal. The manifestations of the veteran's MS with impairment of the lower left extremity are primarily sensory. Although he has increased pain and decreased sensation, it does not appear that the motor function of his lower left extremity has been affected to a great degree. The Board thus finds that his symptomatology is productive of mild impairment and that a 10 percent rating for impairment of the left lower extremity is warranted. As there is no evidence of "moderate" impairment, a higher rating under Diagnostic Codes 8520-8730 is not warranted. Increased Rating for MS with Impairment of the Left Upper Extremity In February 2006, the veteran reported decreased strength in the upper extremities. His left hand grip was found to be 25 percent of normal and pinch strength was 50 percent. In March 2006, the veteran's left upper extremity motor function was 4/5. On VA examination in July 2007, motor function was 5/5. Neither grip nor pinch strength were discussed. On review, the Board finds that the veteran's MS with impairment of the left upper extremity is productive of mild impairment, based on decreased grip and pinch strength, and that a rating of 20 percent is warranted under DC 8513. As there is no evidence of symptomatology that is productive of "moderate" impairment, an increased rating under DCs 8510- 8519 has not been shown. Increased Rating for MS with Episodes of Urinary Incontinence On his June 2005 substantive appeal, the veteran first indicated that his MS symptomatology had caused episodes of incontinence. During his May 2006 hearing testimony, the veteran indicated that he had nocturia (nighttime voiding) 4 times per night with occasional daytime urinary incontinence. During his February 2007 hospitalization, the veteran reported nocturia 2 to 3 times per night as well as urgency and occasional urinary incontinence. The same was found on VA examination in July 2007. As there is credible evidence of nocturia 3 to 4 times per night, an evaluation of 20 percent for urinary frequency under 38 U.S.C.A. § 4.115a is warranted. 38 C.F.R. § 4.115a. The Board also finds that no other potentially applicable diagnostic code affords the veteran a higher evaluation for episodes of urinary incontinence. There is no evidence of renal dysfunction or the need for appliances or absorbent materials. There is also no evidence of obstructed voiding or urinary tract infection. There is no evidence of nephrolithiasis, hydronephrosis, ureterolithiasis, stricture of the ureter or removal of half of the penis which would warrant a higher rating under Diagnostic Codes 7508, 7509, 7510, 7511 or 7520. The veteran is not status post suprapubic cystotomy, which would entitle him to a 100 percent rating under Diagnostic Code 7516. Nor have multiple urethroperineal fistulae been shown; thus, a 100 percent rating under Diagnostic Code 7519 is not for application. Finally, there is no evidence of malignant neoplasms of the genito-urinary system which would warrant a 100 percent rating under Diagnostic Code 7528. Summary As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher evaluation for MS with impairment of the right lower extremity. The Board finds, however, that there is adequate evidence to support an increased rating for impairment of the veteran's left lower extremity, right and left upper extremities, and for episodes of urinary incontinence. ORDER Entitlement to a rating in excess of 40 percent for multiple sclerosis (MS) with impairment of the right lower extremity is denied. Entitlement to a rating of 40 percent for multiple sclerosis (MS) with impairment of the right upper extremity is allowed, subject to the regulations governing the award of monetary benefits. Entitlement to rating of 10 percent for multiple sclerosis (MS) with impairment of the left lower extremity is allowed, subject to the regulations governing the award of monetary benefits. Entitlement to a rating of 20 percent for multiple sclerosis (MS) with impairment of the left upper extremity is allowed, subject to the regulations governing the award of monetary benefits. Entitlement to a rating of 20 percent for multiple sclerosis (MS) with episodes of urinary incontinence is allowed, subject to the regulations governing the award of monetary benefits. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs