Citation Nr: 18142479 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-20 680 DATE: October 15, 2018 ORDER A rating of 70 percent, but no more, for a right upper extremity reflex sympathetic dystrophy (right nerve disorder) prior to March 1, 2016, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 1, 2016, is remanded. FINDING OF FACT Prior to March 1, 2016, The Veteran’s right upper extremity disorder has been characterized by neurological symptoms akin to “severe” incomplete paralysis of the nerves in all the radicular groups. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no more, for a right upper extremity nerve disorder prior to March 1, 2016, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, DC 8513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1991 to February 1999. The Board observes that the Regional Office (RO) granted TDIU as of March 1, 2016. However, while a grant of TDIU is typically considered a full grant of the benefits sought on appeal, the RO stated in its March 2018 supplemental statement of the case and accompanying rating decision that this was a partial grant, and the issue of entitlement to TDIU prior to March 1, 2016 was still on appeal. Cf. Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (in situations where an issue is separately adjudicated, an appellant must then specifically appeal each separately adjudicated issue). As such, the Board will take jurisdiction over this issue given that the Veteran was led to believe this issue was still on appeal. Additionally, the Board notes that in a March 2018 rating decision, the RO increased the Veteran’s a right upper extremity nerve disorder rating to 90 percent, effective March 1, 2016. In the Veteran’s October 2014 notice of disagreement, he stated that he wanted a 70 percent rating for his disorder. Therefore, as the 90 percent rating is a greater benefit than requested to satisfy the appeal, the Veteran’s increased rating to 90 percent as of March 1, 2016 is considered a complete grant of the benefits sought on appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Entitlement to a rating in excess of 50 percent for a right upper extremity nerve disorder prior to March 1, 2016 The Veteran is seeking an increased rating for his right upper extremity nerve disorder. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, prior to March 1, 2016, the Veteran’s upper right (major) extremity nerve disorder was assigned a 50 percent rating under 38 C.F.R. § 4.124a, DC 8512 (addressing impairment to the lower radicular group). However, as a preliminary matter, the evidence demonstrates that the Veteran’s upper extremity nerve disability affects most of his radicular nerves. Therefore, the Board finds that DC 8513 is the most appropriate diagnostic code to rate the Veteran’s disability – especially given that the RO changed his assigned diagnostic code to DC 8513 as of March 1, 2016. Next, for the period on appeal prior to March 1, 2016, the Board assigns a 70 percent rating for symptoms akin to “severe” incomplete paralysis of all the radicular nerve groups. Specifically, at his July 2014, April 2015, and November 2015 VA examinations, the Veteran exhibited “severe” constant pain, intermittent pain, paresthesias, and numbness. The Veteran also reported that he was only able to sleep approximately “2 hours” a night due to the severity of his pain. On examination he had absent and/or impaired reflexes and sensations in his entire right upper extremity. Further, he had 0/5 muscle strength with his right-hand grip and pinch. Importantly, while the examiners indicated that almost all the radicular groups in the right upper extremity show “moderate” incomplete paralysis, they nevertheless determined that the Veteran’s “right upper extremity is essentially non-functional.” As such, the Board finds that the evidence is at least in equipoise that the Veteran demonstrated symptoms akin to “severe” incomplete paralysis of all the radicular nerve groups. Alternatively, the Board notes that even if the Veteran’s disability was still rated under DC 8512, given the functional loss of use of his right extremity as discussed by the VA examiners, the Board determines that the severity of his disability is analogous to complete paralysis of the lower radicular group. Therefore, a rating of 70 percent, but no more, is warranted prior to March 1, 2016. Lastly, the Board acknowledges that the Veteran requested a 70 percent rating for his upper right extremity nerve disability in his October 2014 notice of disagreement. Therefore, this is a full grant of the benefits sought on appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). REASONS FOR REMAND Entitlement to TDIU prior to March 1, 2016 is remanded. As discussed, the Veteran’s claim for TDIU was granted as of March 1, 2016, and denied prior thereto. However, since the Board has granted an increase for his upper extremity nerve disability, the RO should reevaluate and adjudicate this issue prior to Board consideration. The matter is REMANDED for the following action: The RO should undertake any other development deemed necessary in order to adjudicate the TDIU claim prior to March 1, 2016. If the claim is not fully granted, a SSOC should be issued, and the claims file should be returned to the Board for further appellate consideration. L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel