Citation Nr: 19106986 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-04 383 DATE: January 29, 2019 ORDER For the entire period on appeal, an increased disability rating in excess of 10 percent for the Veteran’s service-connected vertigo is denied. For the entire period on appeal, an increased disability rating in excess of 20 percent for the Veteran’s service-connected peripheral neuropathy of the right upper extremity is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the preponderance of the evidence of record indicates that the Veteran’s service-connected vertigo manifested symptoms of occasional lightheadedness or dizziness, without any evidence of staggering. 2. The preponderance of the evidence of record indicates that the Veteran is right-hand dominant. 3. For the entire period on appeal, the preponderance of the evidence of record indicates that the Veteran’s service-connected peripheral neuropathy of the right upper extremity manifested pain, tingling, intermittent numbness, and weakness, and was productive of a disability that more nearly approximates mild incomplete paralysis, without evidence of complete paralysis or substantial loss of use of the dominant hand. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for the assignment of an increased disability rating in excess of 10 percent for the Veteran’s service-connected vertigo have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.87, Diagnostic Codes 6299, 6204. 2. For the entire period on appeal, the criteria for the assignment of an increased disability rating in excess of 20 percent for the Veteran’s service-connected peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.30, 4.124a, Diagnostic Code 8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Navy from July 1985 to August 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (AOJ). The Veteran’s Form 9 indicates that he did not request a Board hearing. A November 2013 rating decision granted service connection for the Veteran’s acute/subacute right cerebellar stroke and awarded a temporary disability rating of 100 percent from September 23, 2013. An April 2014 rating decision extended the temporary disability rating of 100 percent through April 1, 2014, and assigned a 10 percent rating from October 1, 2014. A May 2015 rating decision noted that, although the Veteran had previously been awarded a 10 percent evaluation for residuals of his service-connected stroke, an April 29, 2015 VA examination had identified two separate compensable evaluations for residuals associated with such stroke. Thus, the AOJ deemed it more advantageous to the Veteran to replace his single 10 percent rating for a stroke with two separate compensable evaluations for the distinct residuals of the stroke, and therefore granted service connection for both the Veteran’s peripheral neuropathy of the right upper extremity and also his vertigo with dizziness, awarding disability ratings from April 29, 2015, of 20 percent and 10 percent, respectively. The Veteran contends that he is entitled to an increased rating in excess of 20 percent for his service-connected peripheral neuropathy of the right upper extremity and an increased rating in excess of 10 percent for his service-connected vertigo with dizziness. The Board recognizes that where a veteran seeking an increased disability rating submits evidence of unemployability, the veteran’s entitlement to a total disability based on individual unemployability (TDIU) must be considered as an element of any underlying increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also 38 C.F.R. § 4.16. In this case, the Board finds that the evidence of record indicates that the Veteran’s combined disability rating as assessed on October 13, 2016, satisfies the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a), and that the evidence of record indicates that the Veteran is currently unemployed. Accordingly, the Board has amended the issues on appeal to include entitlement to a TDIU as reflected above. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 the residual conditions in civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of the veteran’s disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran’s disability. See 38 C.F.R. §§ 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran’s disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The assignment of a particular DC depends upon the facts of each particular case, and the Board is authorized to choose an appropriate DC that is supported by both the evidence of record and a sufficiently articulated rationale. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Moreover, service connection for a disability is not severed when the DC assigned to that disability is revised in order to more accurately reflect the veteran’s relevant medical history, diagnoses, and demonstrated symptomatology. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Once the evidence has been assembled in the record, it is the Board’s responsibility to evaluate the evidence. See 38 U.S.C. § 7104(a). The Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). As stated above, the AOJ initially evaluated the Veteran’s right cerebellar stroke under Diagnostic Code 8009, hemorrhage of a brain vessel, which provides a disability rating of 100 percent for the six months following a cerebrovascular accident and a minimum rating for residuals thereafter of 10 percent under the appropriate diagnostic code. See 38 C.F.R. § 4.124a. Accordingly, the AOJ awarded the Veteran a 100 percent rating from September 23, 2013 through October 1, 2014, for his service-connected stroke, which is the maximum rating available, and a 10 percent disability rating for residuals thereafter. See id. Subsequently, after deeming it more advantageous to the Veteran to replace his single 10 percent disability rating for the stroke with two separate and distinct compensable evaluations, the AOJ replaced the Veteran’s 10 percent disability rating under Diagnostic Code 8009 with a 10 percent rating under Diagnostic Code 6299-6204 for vertigo with dizziness and a 20 percent rating under Diagnostic Code 8512 for peripheral neuropathy of the right upper extremity. For the reasons set forth below, the Board agrees that these two separate and distinct evaluations more accurately reflect the Veteran’s relevant medical history, diagnoses, and demonstrated symptomatology and result in a more advantageous result for the Veteran. See Read, 651 F.3d at 1302. 1. Entitlement to an increased rating in excess of 10 percent for the Veteran’s service-connected vertigo with dizziness. The Veteran contends that his service-connected vertigo with dizziness warrants a disability rating in excess of the 10 percent disability rating currently assigned from April 29, 2015. The Veteran’s vertigo with dizziness is currently rated under 38 C.F.R. § 4.87, Diagnostic Codes 6299-6204, for a peripheral vestibular disorder. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. Here, the hyphenated diagnostic code indicates that a disease of the ear (Diagnostic Code 6299) is rated under the criteria for peripheral vestibular disorders (Diagnostic Code 6204). Diagnostic Code 6204 provides that for peripheral vestibular disorders, a 10 percent rating is warranted for occasional dizziness, and a 30 percent rating is warranted for dizziness and occasional staggering. See 38 C.F.R. § 4.87, Diagnostic Code 6204. After careful review, the Board finds that for the entire period of appeal, a preponderance of the evidence of record weighs against the award of a disability rating in excess of 10 percent for the Veteran’s service-connected vertigo with dizziness under Diagnostic Codes 6299-6204 because the record contains no evidence that the symptoms of the Veteran’s service-connected vertigo have ever included staggering, whether occasional or otherwise. In an April 2015 VA examination, the Veteran reported that he had suffered from a massive headache that woke him up one morning in September 2013, accompanied by dizziness, confusion, speech disturbance, and weakness in the right upper extremity, and that he was admitted to a private hospital later that day and subsequently diagnosed with a stroke. The Veteran further reported to the VA examiner that his symptoms in April 2015 had improved, but that he continued to experience recurring vertigo, requiring that he ambulate with a cane. VA treatment records from February 2015 through November 2016 reflect that the Veteran denied suffering from dizziness and vertigo more frequently than he complained of it. While the Veteran complained of occasional episodes of dizziness or lightheadedness in April 2015, March 2016, and April 2016, VA treatment records reflect that he denied any episodes of dizziness or lightheadedness in February 2015, May 2015, July 2016, and November 2016. In addition, as stated above, at no point during the period on appeal did the Veteran complain of any episodes of staggering in connection with his dizziness or vertigo. In March 2017, the Veteran underwent a VA examination which indicated that, except for a slightly low speech discrimination score of 92 percent in his left ear, the Veteran’s ear examination, including screening for balance and complete audiogram, was entirely normal. The Dix Hallpike test for vertigo was normal with no vertigo or nystagmus during the test. In addition, the VA examiner noted that the Veteran reported intermittent dizziness when he first gets up in the morning, but that the Veteran’s vertigo with dizziness was otherwise quiescent. Accordingly, in consideration of the foregoing evidence, the Board finds the evidence of record pertaining to the Veteran’s service-connected vertigo with dizziness to be commensurate with occasional dizziness, as expressly contemplated by Diagnostic Code 6204’s 10 percent rating. See 38 C.F.R. § 4.87. In so finding, the Board also finds that the Veteran is not entitled to a disability rating of 30 percent for dizziness and occasional staggering because a preponderance of the competent and probative evidence of record weighs against such a finding, as the Veteran has not only frequently denied symptoms of dizziness or vertigo on various occasions throughout the period on appeal, but in addition, the Veteran has never complained of any episodes of staggering as expressly contemplated by the 30 percent disability rating. See id. In addition, the Board has also considered whether the Veteran’s service-connected vertigo with dizziness warrants the assignment of any additional disability ratings under other diagnostic codes at any point during the period on appeal. See Schafrath, 1 Vet. App. at 595. However, because the record contains no probative evidence of any other hearing disability, and the March 2017 VA examination indicated an otherwise normal ear examination, the Board finds that no additional diagnostic codes warrant application in this case. Accordingly, because the preponderance of the evidence weighs against the award of any additional increased evaluations, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017). Accordingly, the Board finds that, for the foregoing reasons, a 10 percent rating for the Veteran’s service-connected vertigo with dizziness for the entire period of appeal is warranted. 2. Entitlement to an increased rating in excess of 20 percent for the Veterans’ service-connected right upper nerve disability. Under 38 C.F.R. § 4.124a, neurological disabilities may be evaluated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function and given the following considerations: psychotic manifestations; complete or partial loss of use of one or more extremities; speech disturbances, impairment of vision; disturbances of gait; tremors; visceral manifestations; etc., referring to the appropriate bodily system of the schedule. Where the veteran has suffered the partial loss of use of one or more extremities from neurological lesions, such loss shall be rated by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. In rating peripheral nerve injuries and their residuals, attention should be given to the following: the site and character of the injury; the relative impairment in motor function; trophic changes; and sensory disturbances. See 38 C.F.R. § 4.120. Special consideration should be given to 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, and injury to the skull. See id. 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. Where the injury involved is wholly sensory, such nerve disability should be assigned a mild or, at most, a moderate disability rating. See id. The terms “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule; therefore, rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just. See 38 C.F.R. § 4.6. Diagnostic Code 8512 (lower radicular group) provides that, with respect to the major, dominant extremity, mild incomplete paralysis warrants a 20 percent rating; moderate incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis warrants a 50 percent rating. Complete paralysis of the dominant extremity, marked by paralysis of all intrinsic muscles of hands, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of hand use) warrants a 70 percent rating. With respect to the minor extremity, mild incomplete paralysis warrants a 20 percent rating; moderate incomplete paralysis warrants a 30 percent rating; severe incomplete paralysis warrants a 40 percent rating; and complete paralysis warrants a 60 percent rating. Diagnostic Code 8515 (median nerve) provides that, with respect to the major, dominant extremity, mild incomplete paralysis warrants a 10 percent rating; moderate incomplete paralysis warrants a 30 percent rating; and severe incomplete paralysis warrants a 50 percent rating. Complete paralysis of the dominant extremity warrants a 70 percent disability rating for the major (dominant) extremity and is manifested as follows: the hand inclined to the ulnar side; the index and middle fingers more extended than normally; considerable atrophy of the muscles of the thenar eminence; the thumb in the plane of the hand; pronation incomplete and defective; absence of flexion of index finger and feeble flexion of middle finger; cannot make a fist; index and middle fingers remain extended; cannot flex distal phalanx of thumb; defective opposition and abduction of the thumb at right angles to palm; flexion of the wrist weakened; or pain with trophic disturbances. With respect to the minor, non-dominant extremity, mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; severe incomplete paralysis warrants a 40 percent disability rating; and complete paralysis warrants a 60 percent rating. Diagnostic Code 8516 (ulnar nerve) provides that, with respect to the major, dominant extremity, mild incomplete paralysis warrants a 10 percent rating; moderate incomplete paralysis warrants a 30 percent rating; and severe incomplete paralysis warrants a 40 percent rating. Complete paralysis of the dominant extremity warrants a 60 percent rating and is marked by the following: “griffin claw” deformity due to flexor contraction of the ring and little fingers; atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers; cannot spread the fingers (or reverse); cannot adduct the thumb; and flexion of wrist weakened. With respect to the minor, non-dominant extremity, mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; severe incomplete paralysis warrants a 30 percent disability rating; and complete paralysis warrants a 50 percent rating. Under VA regulations, only one hand shall be considered dominant, and such dominance will be determined by the evidence of record, or by testing on VA examination. See 38 C.F.R. § 4.69. The Board hereby finds that the preponderance of the evidence in this case reflects that the Veteran’s right hand is dominant. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. The competency of evidence differs from its weight and credibility; the former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual assessment of the probative value of such evidence once it has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, after careful review, the Board finds that for the entire period of appeal, a preponderance of the evidence of record weighs against the award of a disability rating in excess of 20 percent for the Veteran’s service-connected peripheral neuropathy of the right upper extremity because the preponderance of the evidence of record reflects that the Veteran’s overall disability picture more closely approximates the criteria for a 20 percent rating for mild incomplete paralysis under Diagnostic Code 8512. VA treatment records from February 2015 to April 2017 generally reflect that, during the entire period on appeal, the Veteran reported that his service-connected peripheral neuropathy of the right upper extremity manifested the following symptoms: tenderness; pain, including some pain in right elbow that radiated up into the biceps and down into the forearm, and that the Veteran rated, at best, as a 1 on a scale of 1 to 10; tingling; intermittent numbness in his right small and ring fingers; residual right-sided weakness; some decreased strength in his right arm; some slight weakness of his right grip; and abnormal finger-nose movements and rapid alternating movements. The Veteran’s VA treatment records further indicate that his test results were positive for median compressive neuropathy of the right wrist (carpal tunnel syndrome); negative for ulnar neuropathy; and that he manifested no paralysis or paresthesias. In February 2017, the Veteran underwent a VA examination, during which he reported that his service-connected peripheral neuropathy of the right upper extremity manifested moderate, intermittent pain from his neck to his wrist, and that Vicodin alleviated the pain to some degree. The February 2017 VA examiner indicated that the Veteran suffered from mild paresthesias and mild numbness, that his muscle strength and grip had decreased to 4 out of 5, and that an EMG test confirmed nerve damages from cubital tunnel syndrome. However, the VA examiner also indicated that the Veteran’s sensory exam was normal, his median nerve tests were negative, and that no muscle atrophy was indicated. As a result of these findings, the VA examiner concluded that the Veteran’s service-connected peripheral neuropathy of the right upper extremity had improved since his September 2013 stroke. Accordingly, in consideration of the foregoing evidence, the Board finds the evidence of record pertaining to the Veteran’s service-connected peripheral neuropathy of the right upper extremity to be commensurate with mild incomplete paralysis of the major extremity, thereby warranting a disability rating of 20 percent under Diagnostic Code 8512. See 38 C.F.R. § 4.124a. In so finding, the Board also finds that the Veteran is not entitled to a rating of 40 percent for moderate incomplete paralysis of the major extremity because a preponderance of the competent and probative evidence of record weighs against such a finding, as the record reflects that the April 2017 VA examiner expressly found the Veteran’s paresthesias and numbness to be mild, and that on several occasions during the period of appeal, the Veteran reported suffering from no paresthesias or paralysis at all. Moreover, the Board further notes that the Veteran’s treatment records reflect that his pain was described as “ some,” his numbness was described as “intermittent,” and his weakness was described as “slight.” Accordingly, the Board finds that the Veteran’s overall disability picture more closely approximates the criteria for a 20 percent rating for mild incomplete paralysis. See id. The Board has also considered whether the Veteran’s service-connected peripheral neuropathy of the right upper extremity warrants the assignment of any additional disability ratings under other diagnostic codes at any point during the period on appeal. See Schafrath, 1 Vet. App. at 595. However, because the record contains no probative evidence of any other nerve disability of the right upper extremity, the Board finds that no additional diagnostic codes warrant application in this case. Accordingly, because the preponderance of the evidence weighs against the award of any additional increased evaluations, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran has not specifically raised any other issues, nor have any other issues been reasonably raised by the evidence of record. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017). Accordingly, the Board finds that, for the entire period of appeal, a disability rating in excess of 20 percent for the Veteran’s service-connected peripheral neuropathy of the right upper extremity is not warranted. REASONS FOR REMAND Entitlement to a total disability rating for unemployability is remanded. As stated above, the Board recognizes that where a veteran seeking an increased disability rating submits evidence of unemployability, the veteran’s entitlement to a total disability based on individual unemployability (TDIU) must be considered as an element of the underlying increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also 38 C.F.R. § 4.16. In this case, VA treatment records dated May 2015 indicate that the Veteran reported to his medical providers that he is currently unemployed. Accordingly, the Board finds that the Veteran’s entitlement to a TDIU has been reasonably raised by the record, but that the AOJ has not developed or adjudicated the issue; therefore, the Board must remand for further development of the Veteran’s entitlement to a TDIU. See Rice, 22 Vet. App. at 453. The severity of the Veteran’s service-connected disabilities, his employment history, his education and training, and all other factors having a bearing on the matter must be developed and considered. Accordingly, the matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. (Continued on the next page)   2. Send the Veteran a VCAA notice for a TDIU and any related development (such as a VA Form 21-8940). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel