Citation Nr: 18145710 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 13-05 280 DATE: October 30, 2018 ORDER Prior to October 6, 2017, an increased rating in excess of 60 percent for neuropathy of the left brachial plexus is denied. As of October 6, 2017, but not earlier, an increased rating of 80 percent, but not greater, for neuropathy of the left brachial plexus is granted. Entitlement to a higher initial rating of 100 percent for a psychiatric disability is granted. REMAND Entitlement to special monthly compensation (SMC) is remanded. FINDINGS OF FACT 1. Prior to October 6, 2017, the Veteran's neuropathy of the left brachial plexus symptomatology more nearly approximated severe incomplete paralysis of all radicular groups; during the same period, the Veteran's neuropathy did not more nearly approximate complete paralysis of all radicular groups. 2. As of October 6, 2017, the Veteran’s neuropathy of the left brachial plexus symptomatology has more nearly approximated complete paralysis of all radicular groups. 3. During the entire initial rating period, the Veteran's psychiatric disability symptomatology has more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to October 6, 2017, the criteria for a rating in excess of 60 percent for neuropathy of the left brachial plexus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 2. As of October 6, 2017, but not earlier, the criteria for a rating of 80 percent, but no greater, for neuropathy of the left brachial plexus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 3. For the entire initial rating period, the criteria for an initial schedular rating of 100 percent for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. A Veteran’s entire history is to be considered when assigning ratings. 38 C.F.R. § 4.1. Separate ratings can be assigned for separate periods of time during the claim period based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to increased rating for neuropathy of the left brachial plexus During the entire increased rating period, the Veteran's neuropathy of the left brachial plexus has been rated pursuant to Diagnostic Code 8513. Of note, the Veteran’s neuropathy disability affects the radicular groups of the left upper extremity. As the Veteran is right-handed, the left upper extremity is considered the minor extremity under VA regulations. 38 C.F.R. § 4.69. Diagnostic Code 8513 provides the rating criteria for paralysis of the radicular nerve, and therefore neuritis and neuralgia of that nerve. Ratings of 20 percent, 30 percent, and 60 percent are assigned for incomplete paralysis of the minor extremity which is mild, moderate, or severe. An 80 percent rating is assigned for complete paralysis of the radicular nerve of the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8513. Reviewing the evidence prior to October 6, 2017, in a September 2010 VA medical examination report, the Veteran reported experiencing constant pain in the left arm from the biceps distally. The Veteran also indicated having nearly constant numbness in in all of his fingers with the exception of the thumb. The Veteran stated that the entire arm was weak. The Veteran stated that he did not experience any flare-ups of symptoms, because the symptoms never changed. The Veteran indicated that he predominantly used his right hand to perform the activities of daily living. The Veteran stated that he last worked as a produce delivery person in 1980. He stated that, in performing that job, he used his right arm more than his left. On examination, the examiner noted that abduction was grade 1+ with shoulder pain. The examiner indicated that biceps, triceps, wrist extensors, finger flexors, and intrinsic muscles were grade 3+, all with shoulder and elbow pain. The examiner indicated that the Veteran had diminished, but present, light touch above his elbow and normal light touch below the elbow. The examiner stated that deep tendon reflexes were grade 1+. On range of motion testing, at the shoulder, abduction was from 0 to 5 degrees, flexion was from 0 to 10 degrees, and extension was from 0 to 5 degrees. The examiner noted pain and weakness for all ranges tested, and no change with repetition. The Veteran requested that the examiner not perform external or internal rotation testing for the shoulder due to shoulder pain. The examiner noted that elbow range of motion was from 0 to 80 degrees of flexion, with pain at the end range of flexion, and extension to 0 degrees. The examiner noted that there was no change with repetition. Regarding the wrist, pronation was to 80 degrees, flexion was to 70 degrees, supination was to 45 degrees, extension was to 30 degrees, and flexion was to 70 degrees. The examiner further indicated that radial and ulnar deviation were from 0 to 10 degrees. The examiner indicated that the Veteran did not have any wrist pain. The Veteran was noted to have motion in all fingers, with pain and weakness in the hand upon repetitive motion. The examiner indicated that the Veteran had a mild amount of atrophy in the periscapular muscles on the left when compared with the right. The examiner indicated that that the Veteran had a trace shoulder shrug on the left and scapular winging on the left. At a November 2015 Board hearing, the Veteran reported being unable to carry any object heavier than five pounds in the left hand. The Veteran indicated that, after carrying a light object in the left hand for a short distance, he had to transfer it to the other hand. The Veteran also indicated that he could only lift his arm to the level of his navel. For the period prior to October 6, 2017, the Board finds that the Veteran's neuropathy disability did not more nearly approximate complete paralysis of all radicular groups. Although the disability caused the Veteran great difficulty in using his shoulder and lifting his arm, the Veteran still was able to use the wrist and hand. Of note, the Veteran indicated that he could carry objects in the left hand, even though the objects had to be light and could only be carried for a short distance. The Board finds that those symptoms did not more nearly approximate the complete paralysis of all radicular groups required for a next higher 80 percent rating under Diagnostic Code 8513. 38 C.F.R. § 4.124a. Notably, the examiner did not find complete paralysis. Reviewing the evidence as of October 6, 2017, in an October 6, 2017 VA medical examination report, a VA examiner reported that the Veteran had complete paralysis of all radicular groups of the right upper extremity and no impairment of the nerves of the left upper extremity. As the Veteran is service-connected for neuropathy affecting the left upper extremity and has never reported experiencing difficulties with the right upper extremity, the Board notes that the examiner’s findings are inconsistent with all other evidence of record and will assume that inconsistency may be explained by a typographical error. Therefore, for the period as of October 6, 2017, the Board finds that the Veteran’s neuropathy of the left brachial plexus symptomatology has more nearly approximated the complete paralysis of the radicular groups of the left upper extremity contemplated by an 80 percent rating under Diagnostic Code 8513. The 80 percent rating is the highest rating listed under Diagnostic Code assigned for the Veteran's disability, and, as the Veteran's symptoms do not more nearly approximate those required for an even higher rating under any different Diagnostic Code, the Board finds that any claim for a rating in excess of 80 percent must be denied. The Board finds that the preponderance of the evidence is against the assignment of a rating greater than 60 percent prior to October 6, 2017, for the left upper extremity neurologic disability. Resolving reasonable doubt in favor of the claimant, the Board finds that the criteria for an 80 percent rating, but not higher, are met as of October 6, 2017, but not earlier. 2. Entitlement to a higher initial rating for a psychiatric disability The Veteran has established service connection for a psychiatric disability, characterized as adjustment disorder with mixed emotional features, which was service-connected secondary to a service-connected left upper extremity neurologic disability. During the entire increased rating period, the Veteran’s psychiatric disability has been rated under Diagnostic Code 9440, which uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9440. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted where the evidence shows occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted where the evidence shows total occupational and social impairment, with deficiencies such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9440, General Rating Formula for Mental Disorders. In adjudicating a claim for a higher rating, the VA adjudicator must consider all symptoms of a claimant’s service-connected mental conditions that affect the level of occupational or social impairment. The Board must consider the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms or effects that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples or symptoms like or similar to the Veteran’s psychiatric disability symptoms in determining the appropriate schedular rating assignment. Although the Board may note which criteria have not been met, the Board has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for psychiatric disability. Mauerhan v. Principi, 16 Vet. App. 436 (2002). For the entire initial rating period, the Board finds that the Veteran's psychiatric disability symptomatology has more nearly approximated the total occupational and social impairment required for a maximum 100 percent schedular rating under Diagnostic Code 9440. During the entire initial rating period, the Veteran has not been able to work. In June 2011 and April 2012 private psychiatric impairment reports, a private examiner indicated that the Veteran's inability to work was related to the psychiatric disability, which has been manifested by such symptoms as intermittent bouts of memory loss for names of close relatives, own occupation, or own name; unprovoked hostility and judgment; and occasional grossly inappropriate behavior. The Veteran has not reported being able to maintain relationships with any individual, to include ex-wives, his children, or any acquaintances. Moreover, during the pendency of the appeal, the Veteran reported being charged with assault after a conflict with his neighbor. Therefore, for the entire initial rating period, the Board finds that the Veteran's psychiatric disability symptomatology has more nearly approximated total occupational and social impairment and has warranted a 100 percent schedular rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS FOR REMAND The Veteran seeks SMC based on housebound status under U.S.C. § 1114(s). To qualify for SMC at that rate, the evidence must show that a Veteran has a single service-connected disability rated 100 percent and an additional service-connected disability, or disabilities, rated 60 percent or more disabling that are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or the Veteran has a single service-connected disability rated as 100 percent disabling and, due solely to service-connected disability, the Veteran is permanently and substantially confined to his immediate premises. 38 C.F.R. § 3.350(i). This decision has assigned an initial 100 percent rating for a psychiatric disability. The Veteran has additional service-connected disability rated 60 percent or greater. However, whether those disabilities are “separate and distinct” must be adjudicated now that the Veteran meets the schedular requirements for consideration of SMC at the housebound rate. Service connection was established for the psychiatric disability secondary to the service-connected upper extremity neurologic disability. The Agency of Original Jurisdiction should readjudicate the issue as the factual basis has changed. The claim is remanded for the following action: Effectuate the increased ratings assigned by this Board decision. Then, adjudicate the issue of entitlement to SMC. Make a specific finding as to whether the psychiatric disability and upper extremity neurologic disability are “separate and distinct.” Make a specific finding as to whether the Veteran is permanently substantially confined to his house and immediate premises due to service-connected disability. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel