Citation Nr: 1334319 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-11 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased rating for the residuals of a cerebral vascular accident (CVA), right upper extremity, currently evaluated at 40 percent disabling. 2. Entitlement to an increased rating for the residuals of a cerebral vascular accident (CVA), right lower extremity, currently evaluated at 20 percent disabling. ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from April 1987 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The RO continued the Veteran's 20 percent disability evaluation for the residuals of a CVA, right upper extremity, and increased his evaluation to 20 percent for the residuals of a CVA, right lower extremity, in a November 2011 rating decision. The RO subsequently increased the right upper extremity evaluation to 40 percent in a March 2012 rating decision. This increase during did not constitute a full grant of the benefit sought. Therefore, the Veteran's claim for increased evaluations for the service-connected upper and lower extremity disabilities remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran requested a hearing before the Board in his May 2012 Substantive Appeal (VA Form 9). The Veteran withdrew his request for a hearing in October 2012. 38 C.F.R. § 20.704(e) (2012). A review of the Virtual VA paperless claims processing system revealed no records which are pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's right upper extremity disability more closely approximates moderate incomplete paralysis. 2. The Veteran's right lower extremity disability more closely approximates moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 40 percent for a right upper extremity disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 Supp. 2012); 38 C.F.R. §§ 4.1-4 .14, 4.123, 4.124a, Diagnostic Code 8513 (2012). 2. The criteria for an increased evaluation in excess of 20 percent for a right lower extremity disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has satisfied its duty to notify by issuing a notice letter in October 2011. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. This letter provided notice informing the Veteran that to substantiate his increased evaluation claim, he needed to submit evidence that his service-connected disabilities had increased in severity. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and a report of a VA compensation examination in November 2011. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Evaluation Claims Although the Veteran contends that his peripheral neuropathy of his right upper and lower extremities is more severe than reflected by his current disability ratings, the preponderance of the evidence is against the claim and the appeal will be denied. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in the disability rating is at issue, as is the case here, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Right Upper Extremity Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.12. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Id. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. 38 C.F.R. § 4.124a. Neuritis, whether cranial or peripheral, is rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.123. The maximum evaluation for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis of the nerve. Id. The maximum rating for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis for the sciatic nerve and moderate severe incomplete paralysis for all other nerves. Id. Neuralgia, whether cranial or peripheral, characterized usually by a dull and intermittent pain also is rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.124. The maximum evaluation is equal to that for moderate incomplete paralysis of the nerve. Id. If tic doulourex or trifacial neuralgia is present, however, the rating may equal complete paralysis of the nerve. Id. Partial loss of use of one or more extremities from neurological lesions further is rated by comparison with mild, moderate, and severe incomplete paralysis or complete paralysis of the peripheral nerves. 38 C.F.R. § 4.124a. The Veteran maintains that his service-connected disability of the right upper extremity is more severe than what is reflected by the currently assigned disability rating. He is assigned a 40 percent evaluation under Diagnostic Code 8513. Diagnostic Code 8513 provides the rating criteria for paralysis of all radicular groups of nerves, and therefore neuritis and neuralgia of those nerves. 38 C.F.R. § 4.124a, Diagnostic Codes 8513, 8613, 8713. For impairment of an upper extremity, the disability rating assigned depends on whether the extremity is the major extremity or the minor extremity. The major extremity is the one predominantly used by the Veteran. Only one extremity may be considered major. 38 C.F.R. § 4.69. The right upper extremity is dominant in this matter. Under Diagnostic Code 8513, a 20 percent rating is assigned for mild incomplete paralysis in the major extremity. A 40 percent rating is warranted for moderate incomplete paralysis in the major extremity. Severe incomplete paralysis in the major extremity merits a 70 percent rating. A 90 percent rating regarding the major extremity is reserved for complete paralysis. 38 C.F.R. § 4.124a. The Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 8513. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Here, as the medical evidence shows involvement of numerous peripheral nerves in the right upper extremity, the Board finds that Diagnostic Code 8513, dealing with paralysis of all radicular groups, is the most beneficial. In addition to Diagnostic Code 8513, Diagnostic Code 8510 provides the rating criteria for paralysis of the upper radicular group (fifth and sixth cervical), and therefore neuritis and neuralgia of that nerve pursuant to Diagnostic Codes 8610 and 8710, respectively. The middle radicular group specifically is addressed by Diagnostic Code 8511 for paralysis, 8611 for neuritis, and 8711 for neuralgia. The lower radicular group specifically is addressed by Diagnostic Code 8512 for paralysis and 8612 for neuritis, and 8712 for neuralgia. 38 C.F.R. § 4.124a. Each of these codes provides a 20 percent evaluation for mild incomplete paralysis in the minor or major extremity. A 30 percent rating requires moderate incomplete paralysis in the minor extremity, whereas the same in the major extremity warrants a 40 percent rating. Severe incomplete paralysis results in a 40 percent rating for the minor extremity and a 50 percent rating for the major extremity. The highest respective ratings of 60 percent regarding the minor extremity and 70 percent regarding the major extremity are reserved for complete paralysis. With respect to the upper radicular group, complete paralysis occurs when all shoulder and elbow movements are lost or severely affected but hand and wrist movements are not affected. With respect to the middle radicular group, complete paralysis means adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist is lost or severely affected. With respect to the lower radicular group, complete paralysis means all intrinsic muscles of the hand, and some or all of the flexors of the wrist and fingers, are paralyzed (substantial loss of use of the hand). 38 C.F.R. § 4.124a. With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. When the involvement is bilateral, the ratings should be combined with application of the bilateral factor. 38 C.F.R. § 4.124a. The terms "mild," "moderate," and "severe" under Diagnostic Code 8513 are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. At a VA brain and spinal cord examination in November 2011, the Veteran presented with a history of no hospitalization or surgery since his CVA in 1988. He described weakness in his right hand, wrist, and fingers. Reflex examination of the upper extremity was normal for biceps, triceps, and brachioradialis. Sensory examination of the upper extremity and tone was normal, but he had dyesthesia in all fingers. No muscle atrophy was present and there was no abnormal muscle tone or bulk. The examiner diagnosed the residuals of a CVA, right upper extremity. As for their impact on daily life, the residuals primarily affected his grip and writing, with a moderate effect on chores, and a moderate to severe effect on sports. A December 2011 VA treatment record indicates the Veteran's continuing difficulties with his right hand, including the worsening of his handwriting. He also noted pain when trying to lift bed covers and the worsening of the contracture in his hand. The preponderance of the evidence is against the assignment of a higher rating. The Veteran's bilateral upper extremity symptomatology more closely approximates moderate incomplete paralysis of all radicular groups. There is no evidence the Veteran has experienced any additional symptomatology beyond that which has been described above that would rise to the level of severe neurological impairments. The Veteran's symptoms do not warrant a severe incomplete paralysis rating based upon the factors outlined above. Under the rating schedule, disabilities of the peripheral nerves with neuritis, paralysis, and neuralgia with reduced reflexes in both upper extremities and no evidence of atrophy warrant ratings for moderate impairments. See 38 C.F.R. § 4.124a. There is no evidence of atrophy or motor loss. The objective evidence therefore does not support the finding that the Veteran's disabilities are manifested by severe incomplete or complete paralysis. Accordingly, a disability rating in excess of 40 percent for the right upper extremity is not warranted. Right Lower Extremity The Veteran maintains that his service-connected disability of his right lower extremity is more severe than what is reflected by the currently assigned disability rating. He is assigned a 20 percent evaluation under Diagnostic Code 8520. Diagnostic Code 8520 pertains to paralysis of the sciatic nerve, and provides that a 10 percent rating is warranted for mild incomplete paralysis. A rating of 20 percent is warranted for moderate incomplete paralysis. Moderately severe incomplete paralysis merits a 40 percent rating. A rating of 60 percent requires severe incomplete paralysis with marked muscle atrophy. The maximum rating of 80 percent is reserved for complete paralysis shown by manifestations such as: the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. At a VA brain and spinal cord examination in November 2011, the Veteran noted weakness in his right ankle. The examiner noted a history of rigidity in this lower extremity with 3 beats clonus. Reflex examination found normal plantar flexion and a hyperactive ankle jerk with clonus. Sensory examination was normal. Motor examination was normal. Muscle tone was normal and there was no muscle atrophy. The examiner found the Veteran had a slight limp. As above, the examiner diagnosed the residuals of a CVA, right lower extremity. A December 2011 VA treatment record indicates the Veteran related having "mild right lower extremity weakness." A disability rating in excess of 20 percent is not warranted for peripheral neuropathy of the right lower extremity. The Veteran's disability was primarily manifested by weakness in his right foot. However, there was no muscle atrophy and right plantar flexion was normal. The lack of muscle atrophy coupled with the relatively minimal loss of function of the lower extremities is significant. The evidence fails to approximate findings showing that the Veteran's lower extremity disability is manifested by moderately severe incomplete paralysis or severe incomplete paralysis. A disability rating in excess of 20 percent is therefore not warranted. The Board has also considered whether higher ratings may be assigned for the Veteran's disabilities under any other diagnostic code. Diagnostic Code 8521 (external popliteal nerve), 8524 (internal popliteal nerve), and Diagnostic Code 8526 (anterior crural nerve), also provide a 10 percent rating for mild incomplete paralysis, a 20 percent for moderate incomplete paralysis and a 30 percent rating for severe incomplete paralysis. Diagnostic Codes 8527 (internal saphenous nerve), 8528 (obturator nerve), and 8529 (external cutaneous nerve of thigh), do not provide for a rating in excess of 10 percent. Higher ratings would not be warranted under these diagnostic codes. Diagnostic Codes 8522 (musculocutaneous nerve), 8523 (anterior tibial nerve), and 8525 (posterior tibial nerve) provide for a maximum 30 percent rating for complete paralysis of the nerve. However, the evidence in this case does not indicate that the Veteran had any impairment of these nerves in his right lower extremity. Thus, ratings higher than 20 percent are not warranted under these diagnostic codes. The Veteran has not raised, and the evidence does not suggest that referral for extra-schedular evaluations are warranted. The Veteran's symptoms are addressed by the rating criteria discussed above, and such a referral is appropriate where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations are not inadequate. Evaluations in excess of those assigned are provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disabilities. ORDER Entitlement to an increased rating for residuals of a CVA, right upper extremity, currently evaluated at 40 percent disabling, is denied. Entitlement to an increased rating for residuals of a CVA, right lower extremity, currently evaluated at 20 percent disabling, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs