Citation Nr: 20007665 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 10-36 210A DATE: January 29, 2020 ORDER Throughout the pendency of the appeal, entitlement to an initial 70 percent evaluation, but no higher, for service-connected neurological involvement of the upper right (major) extremity (hereinafter, a service-connected neurological disability of the right arm) for substitution and accrued benefits purposes is granted, subject to the applicable regulations concerning the payment of monetary benefits. Throughout the pendency of the appeal, entitlement to an initial 60 percent evaluation, but no higher, for service-connected neurological involvement of the upper left (minor) extremity (hereinafter, a service-connected neurological disability of the left arm) for substitution and accrued benefits purposes is granted, subject to the applicable regulations concerning the payment of monetary benefits. REMANDED Entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia of the right knee for substitution and accrued benefits purposes is remanded. Entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia of the left knee for substitution and accrued benefits purposes is remanded. Entitlement to an effective date prior to June 17, 2009, for the grant of service connection and assignment of a 40 percent initial evaluation for a service-connected neurological disability of the right arm for substitution and accrued benefits purposes is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) for substitution and accrued benefits purposes is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that, throughout the appeal period (from June 17, 2009, to May 4, 2018), the manifestations of the Veteran’s service-connected neurological involvement of the upper right (major) extremity was not wholly sensory, and most closely approximated “severe” incomplete paralysis of the radicular nerve. 2. The most probative evidence reflects that, throughout the appeal period (from June 17, 2009, to May 4, 2018), the manifestations of the Veteran’s service-connected neurological involvement of the upper left (minor) extremity was not wholly sensory, and most closely approximated “severe” incomplete paralysis of the radicular nerve. 3. The most probative evidence does not reflect that the Veteran’s service-connected neurological involvement of the arms was manifested by complete paralysis of either arm, or symptoms congruent therewith, from June 17, 2009, to May 4, 2018. CONCLUSIONS OF LAW 1. The criteria for 70 percent initial evaluation, but no higher, for the Veteran’s service-connected neurological disability of the right (major) arm were met from June 17, 2009, to May 4, 2018. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8513 (2018). 2. The criteria for 60 percent initial evaluation, but no higher, for the Veteran’s service-connected neurological disability of the left (minor) arm were met from June 17, 2009, to May 4, 2018. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8513 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1969 to September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2009, September 2011, and February 2012 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs) Of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran’s appeals seeking increased evaluations for his service-connected knee disabilities were previously before the Board in February 2013, January 2014, June 2014, and September 2016, at which times they were remanded for additional evidentiary and procedural development. In May 2017, all four of the Veteran’s appealed issues seeking increased evaluation were before the Board, which, among other actions, denied the Veteran’s appeals for increased evaluations for his service-connected knee disabilities and remanded the appeals for increased initial evaluations for his service-connected neurological impairment of the arms. The Veteran subsequently appealed the Board’s May 2017 denial of his appeals seeking increased evaluations for his service-connected knee disabilities to the United States Court of Appeals for Veteran’s Claims (the Court). In a February 2018 Order, the Court endorsed a Joint Motion for Partial Remand (JMPR) executed by an attorney representing the Veteran and VA’s office of General Counsel dated that same month, which vacated the Board’s May 2017 decision regarding these issues and remanded them back to the Board with guidance and instructions. The instructions of the February 2018 Court-endorsed JMPR will be further discussed below. During the lengthy appeal period, the AOJ has partially granted the issues seeking increased initial evaluations for his service-connected neurological impairment of the arms. The most-recent of these partial allowances was undertaken in a February 2018 Decision Review Officer (DRO) decision. As none of these partial allowances represented a full grant of the benefits sought, the issues remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Unfortunately, the Veteran died in May 2018. Within a year of the Veteran’s demise, his widow filed an application to be substituted for her husband regarding the current appeal and a separate VA Form 21-22a (Appointment of Individual as Claimant's Representative) in favor of the same private attorney who represented her late husband in these matters. In June 2018, the Board dismissed the Veteran’s pending appeal due to his demise; however, in a December 2019 administrative decision, the Veteran’s widow was adjudicated as a proper substitute for the Veteran by the AOJ, and thus, she is now the appellant regarding the matters before the Board. As such, the appeal has been returned to the Board for further appellate consideration for substitution and accrued benefits purposes. In July 2018, the appellant’s private attorney filed a timely Notice of Disagreement with the initial evaluation and effective date assigned for the partial allowance of an increased initial evaluation for neurological impairment of the right arm by the AOJ in the February 2018 DRO decision. In this statement, among others, the Veteran’s private attorney also asserted that the Veteran’s service-connected disabilities negative impacted his employment during his lifetime. This disagreement and statement gave rise to two additional appealed issues – (1) entitlement to a TDIU and (2) entitlement to an effective date prior to June 17, 2009, for the grant of service connection and assignment of a 40 percent initial evaluation for a service-connected neurological disability of the right arm – which have been added to the title page of this decision. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial evaluation in excess of 40 percent for a service-connected neurological disability of the right arm for substitution and accrued benefits purposes 2. Entitlement to an initial evaluation in excess of 30 percent for a service-connected neurological disability of the left arm for substitution and accrued benefits purposes The Veteran, appellant, and their private attorney, have asserted that the severity and frequency of the manifestations of the Veteran’s service-connected neurological disability of the arms most closely approximated the criteria for an evaluation in excess of 30 percent during his lifetime. For the reasons expressed below, the Board concludes that the most probative evidence bolsters this contention, and thus, the appealed issues are partially granted. The Veteran’s service-connected neurological disability of the arms are currently evaluated under the criteria within 38 C.F.R. § 4.124a, Diagnostic Code 8513, pertinent to all radicular groups. For rating purposes, a distinction is made between major (dominant) and minor groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § 4.69. To this point, the evidence unambiguously shows that the Veteran was right-hand dominant, and thus, the current issues involve his major (right) and minor (left) extremities. Under this Diagnostic Code, evaluations of 20 percent, 40 percent and 70 percent are assignable for incomplete paralysis of all radicular groups of the major extremity which is mild, moderate or severe in degree, respectively. Evaluations of 20 percent, 30 percent, and 60 percent are assignable for incomplete paralysis of the minor extremity which is mild, moderate or severe in degree, respectively. Evaluations of 90 percent and 80 percent are also assignable for complete paralysis of the radicular nerve of the major and minor extremity, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8513.Peripheral nerve disability ratings are also available for each individual nerve and the upper, middle, and lower radicular groups; however, rating the Veteran under Diagnostic Code 8513 provides for the highest rating. The term "incomplete paralysis" indicates a degree of lost or impaired function less than the type picture for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Board also acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence 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. Analysis The record before the Board reflects that the Veteran experienced numbness and pain in his arms and hands, resulting in functional impairment, due to his service-connected neurological disability. These symptoms are detailed throughout his VA and private treatment records. During his lifetime, he was only provided one VA peripheral nerves examination to address the manifestations of these disabilities, and the May 2017 VA examination report shows the examiner’s notations that such were no more than moderate in severity and frequency. Initial review of this evidence reflects that the manifestations of this disability were wholly sensory, and thus, no more than “moderate” in severity, as reflected in the May 2017 VA examination report. However, a closer reading of this evidence shows that this sensory impairment also resulted in decreased strength and dexterity in the Veteran’s hands and arms. While this is not specifically noted on the May 2017 VA examination report, the examiner’s October 2017 addendum opinion clearly reflects that, due to the manifestations of these service-connected disabilities, the Veteran would be unable to lift heavy objects or perform work using a computer. The Board concludes that this evidence is tantamount to neurological involvement beyond “wholly sensory” and most closely approximates “severe” incomplete paralysis of the radicular nerves. As such, the criteria for initial evaluations of 70 percent (right arm) and 60 percent (left arm) are warranted throughout the appeal period (since June 17, 2009). To this extent, the Veteran’s appealed issues are partially granted. The Board has considered whether higher initial evaluations are warranted for these service-connected disabilities; however, there is no evidence, to include from the Veteran, the appellant, and/or their private attorney, that the Veteran experienced complete paralysis of either radicular nerve at any time during the appeal period. Lastly, the Board finds that the issue of an extraschedular rating has not been raised by the record, and will not consider referral. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia of the right knee for substitution and accrued benefits purposes 2. Entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia of the left knee for substitution and accrued benefits purposes In the February 2018 Court-endorsed JMPR, the parties agreed that the Board erred in the May 2017 denial of these issues in finding that the September 2014 VA knee examination report was adequate for the purpose of evaluating these service-connected disabilities. Specifically, the parties agreed that September 2014 VA examiner did not provide adequate explanations for his inability to provide range-of-motion findings of the knee on and/or after repetitive use, and thus, the Board’s reliance on the evidence contained within this report was in error. While further examination is not possible due to the passing of the Veteran, the Court has held that in such circumstances, a retrospective medical evaluation is warranted. Chotta v. Peake, 22 Vet. App. 80 2008). Such actions must be undertaken on remand. 3. Entitlement to an effective date prior to June 17, 2009, for the grant of service connection and assignment of a 40 percent initial evaluation for a service-connected neurological disability of the right arm for substitution and accrued benefits purposes As noted in the Introduction, in July 2018, the private attorney for the Veteran and appellant expressed disagreement June 17, 2009, as the effective date assigned for the 40 percent initial evaluation for a service-connected neurological disability of the right arm. As this date was also assigned for the grant of service connection for this disability, it appears that both issues are being challenged. As this issue does not appear in the electronic Veterans Appeals Control and Locator System (VACOLS) as an appealed issue (currently or previously), the Board concludes that a remand is necessary so that the appellant may be provided a Statement of the Case readjudicating this issue, as provided by the controlling laws. 38 C.F.R. § 19.26 (2019); Manlincon v. West, 12 Vet. App. 238 (1999). 4. Entitlement to TDIU for substitution and accrued benefits purposes The Veteran’s private attorney first raised the matter of entitlement to a TDIU as part and parcel of his appealed issues seeking increased evaluations shortly before his demise. As such, the AOJ did not have an opportunity to develop and/or adjudicate the matter in the first instance. Initially, the Board notes that the Veteran does not meet the schedular criteria for a TDIU throughout the entirety of the appeal period (since May 14, 2009); however, this will undoubtedly change based implementation of the Board’s partial allowances and the outcomes of the issues remanded by the Board. Notwithstanding the above, the Board notes that there is evidence that the Veteran’s service-connected disabilities may have rendered him unemployable during the appeal period (since May 14, 2009). Specifically, the Board notes that an October 2009 VA general examination report reflects that the Veteran was last employed as a “health care executive” in February 2009, at which time he was laid off. While it is unclear what duties this profession entails, the October 2017 VA addendum opinion makes it clear that, at the very least, his service-connected neurological disabilities of the arms and hands prevented heavy lifting and computer work. On remand, the Board concludes that the AOJ must undertake implementation of the Board’s partial allowances and any additional development necessary to adequately adjudicate the Veteran’s appeal seeking a TDIU, to include obtaining any necessary retrospective medical opinions and/or referring the issue to the Undersecretary for Benefits or the Director of the Compensation Service for appropriate action as per 4.16(b), if necessary. Lastly, to ensure completeness of the file, any outstanding VA and private treatment records should be sought, obtained, and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file any outstanding VA treatment records. 2. The AOJ must contact the appellant and request that she complete a release for any post-service private treatment records that are outstanding and pertinent to the issues remanded by the Board that are not already part of the record. In these releases, the appellant should provide a time period in which the Veteran was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the appellant should be informed in writing. 3. Thereafter, the AOJ must provide the appellant and her private attorney a Statement of the Case (SOC) addressing the issue of to an effective date prior to June 17, 2009, for the grant of service connection and assignment of a 40 percent initial evaluation for a service-connected neurological disability of the right arm for substitution and accrued benefits purposes. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. 4. Thereafter, the AOJ must implement the Board’s partial allowances, as readjudicated above. 5. Thereafter, the AOJ must arrange for the Veteran’s electronic file to be transferred to an appropriate VA clinician to determine the frequency and severity of his service-connected knee disabilities from May 14, 2009, to May 4, 2018. After a review of the complete file, the examiner is requested to address the following: For the period from May 14, 2009, to May 4, 2018, provide retrospective range of motion findings for each of the Veteran’s knees, to include on repetitive motion testing, during a flare-up, on active motion, on passive motion, in a weight-bearing position, and in a nonweight-bearing position. In addressing the above, please review the prior VA examination reports for each of these disabilities, and based on the information therein, provide the requested findings. If the clincian cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 6. Thereafter, the AOJ must readjudicate the issue seeking increased evaluations for the Veteran’s service-connected knee disabilities. If the benefit sought on appeal is not granted to the fullest extent, a Supplemental Statement of the Case (SSOC) should be issued to the appellant and her private attorney, and they should be afforded the requisite opportunity to respond. 7. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the issue seeking a TDIU, to specifically include collecting and verifying information concerning the Veteran’s complete educational and occupational history and requesting any necessary medical opinions. 8. After undertaking any additional development deemed appropriate, to include referring the Veteran’s TDIU claim to the Undersecretary for Benefits or the Director of the Compensation Service for appropriate action as per 4.16(b), if necessary, and giving the appellant a full opportunity to supplement the record, adjudicate the issue to establish TDIU in light of any additional evidence added to the record. If any benefit sought on appeal is not granted throughout the entirety of the appeal period, the appellant and her private attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.