Citation Nr: 20036664 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 16-43 379 DATE: May 28, 2020 ORDER Entitlement to an initial rating in excess of 50 percent for migraine headaches is denied. Entitlement to an initial rating in excess of 30 percent for interstitial lung disease, with hemoptysis and shortness of breath (SOB), is denied. Entitlement to an initial rating of 40 percent for right upper extremity (RUE) hypesthesia is granted. Entitlement to an initial rating in excess of 30 percent fort right facial hypesthesia is granted. REMANDED Entitlement to a total rating due to individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is currently in receipt of the maximum schedular rating for his service-connected migraine headaches. 2. Throughout the period on appeal, the Veteran’s interstitial lung disease was not productive of forced vital capacity (FVC) of 50- to 64-percent predicted, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) (SB) of 40- to 55-percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. 3. Throughout the period on appeal, the Veteran’s RUE hypesthesia is manifested by moderate incomplete paralysis of the upper radicular group of the major arm. 4. Throughout the period on appeal, the Veteran’s right facial nerve hypesthesia is manifested by severe, incomplete paralysis of the fifth (trigeminal) cranial nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (2019). 2. The criteria for an initial rating in excess of 30 percent for interstitial lung disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.96, 4.97, DC 6831 (2019). 3. The criteria for an initial rating of 40 percent, but no higher, for RUE hypesthesia have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, 4.73, DCs 8517, 8510, 8710 (2019). 4. The criteria for an initial rating of 30 percent, but no higher, for right facial hypesthesia have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124, DC 8205 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the United States Army from April 2007 to August 2007 and May 2009 to December 2012. He also had an intervening period of service with a Reserve Component. The procedural history as to this case was provided in Board remands in September 2019 and January 2020. It will not be repeated here. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (202); 38 C.F.R., Part 4 (2019). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2019). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2019). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2019). Entitlement to an Initial Rating in Excess of 50 Percent for Migraine Headaches. Service connection for migraine headaches was established upon rating decision in August 2013. A 50 percent rating was assigned, effective December 19, 2012, pursuant to DC 8100. A 50 percent rating is the maximum rating under DC 8100 and contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100 As such, the Veteran is in receipt of the maximum schedular rating under DC 8100 for his migraine headaches. The Board has considered other DCs, but no other DC would result in a more favorable rating. Accordingly, the criteria for a schedular rating in excess of 50 percent for the Veteran’s migraine headaches have not been met, and the claim is denied. Entitlement to an Initial Rating in Excess of 30 Percent for Interstitial Lung Disease with Hemoptysis and SOB. The Veteran was initially granted service connection for interstitial lung disease with hemoptysis and SOB in an August 2013 rating decision. A 30 percent rating was assigned pursuant to DC 6831, primarily based on pulmonary function testing (PFT) by VA in August 2012. At that time, DLCO (SB) was 59 percent of predicted and FVC was 6.13 on post-bronchodilators. Under DC 6831, a rating of 30 percent for interstitial lung disease is assigned for FVC of 65- to 74-percent predicted, or for DLCO (SB) of 56- to 65-percent predicted. A rating of 60 percent is assigned for FVC of 50- to 64-percent predicted; or, DLCO (SB) of 40- to 55-percent predicted; or, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A rating of 100 percent is assigned for FVC less than 50 percent of predicted value; or, DLCO (SB) less than 40-percent predicted; or, maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; or, cor pulmonale (right heart failure) or pulmonary hypertension, or; when outpatient oxygen therapy is required. When evaluating based on PFTs, post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator studies are poorer that the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5) (2019). The Board in this decision will report the results that are most favorable to the Veteran. When examined by VA in September 2018, it was noted that the Veteran’s respiratory condition required the use of oral or parenteral corticosteroid medications (4 or more in the past months). PFT, post-bronchodilator, showed FVC 111% of predicted, FEV-1 of 117% of predicted, and FEV-1/FVC of 85% percent of predicted. The examiner noted that FVC test results most accurately reflected the Veteran’s level of disability. While the Veteran’s SOB “interfered with work” no cardiorespiratory limitation was reported. His SOB occurred with exercise. He could walk half a block before he was SOB. As interstitial lung disease was not productive of FVC of 50- to 64-percent predicted, or DLCO (SB) of 40- to 55-percent predicted, or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, a rating in excess of 30 percent for that time period is not warranted. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit an even more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an Initial Rating in Excess of 20 Percent for RUE Hypesthesia. When service connection was granted for RUE hypesthesia upon rating action in August 2013, a noncompensable rating was assigned, effective December 19, 2012. The Veteran was rated pursuant to DC 8517. During the appeal process, the noncompensable rating was increased to 20 percent in an April 2020 rating decision, effective from December 19, 2012. The increase was pursuant to DC 8710. In the discussion that follows, the Board will consider all relevant DCs. The Diseases of the Peripheral Nerves rating schedule provides guidance for rating neurological disabilities. With regard to rating neurological disabilities, cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2019). Neuralgia, cranial or peripheral, characterized by a dull intermittent pain, is to be rated at equal to moderate incomplete paralysis. 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2019). Under these DCs, a 40 percent disability rating is a warranted when there is moderate incomplete paralysis; a 50 percent disability rating is warranted when there is severe incomplete paralysis; and 70 percent disability rating is warranted when there is complete paralysis of the involved radicular group. The Veteran’s hypesthesia of the nerves of the RUE is most recently rated under 38 C.F.R. § 4.124a, DC 8710, which pertains to neuralgia of the upper radicular group. Neuralgia is characterized usually by a dull and intermittent pain and is to be rated on the same scale as paralysis of the nerve involved, with a maximum rating equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2019). The diagnostic codes pertaining to peripheral neuropathy of the upper extremities differentiate between the major arm and the minor arm. The Veteran is right hand dominant as indicated upon VA exams in March 2011 and December 2019. See 38 C.F.R. § 4.69 (2019). Therefore, the hypesthesia of the nerves of the RUE affects his major arm and will be rated accordingly. Under DC 8510, mild incomplete paralysis of the upper radicular group is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent disabling for the major extremity. Severe incomplete paralysis is rated as 50 percent disabling for the major extremity. Complete paralysis, where all shoulder and elbow movements are lost or severely affected and hand and wrist movements are not affected, is rated as 70 percent disabling for the major extremity. The words “mild,” “moderate,” and “severe” as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120 (2019). Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Upon VA peripheral nerves (PN) examination in December 2019, the examination report reflects moderate RUE paresthesias and/or dysesthesias, as well as numbness. Sensation testing for light touch was absent in the right shoulder area and decreased in the inner/outer arm and fingers. Physical records from January 2020 reflect an assessment that the Veteran would be progressed to “activity to tolerance.” He was to follow-up as needed. The Veteran is seeking an initial rating in excess of 20 percent for his RUE hypesthesia. The highest disability rating allowed under DC 8517 for incomplete paralysis is 20 percent. There is no medical evidence reflecting that the Veteran has complete paralysis, which would result in a 30 percent disability rating. Therefore, no further analysis is necessary regarding DC 8517. Under the additional pertinent DCs of 8710 and 8510, it is the Board’s conclusion that an increased rating of 40 percent is warranted. The VA examiner noted upon recent evaluation that moderate incomplete paralysis was demonstrated. As the RUE extremity is the dominant appendage, the DCs call for a rating of 40 percent. As severe incomplete paralysis is not demonstrated, a rating higher than 40 percent is not warranted. Entitlement to an Initial Rating in Excess of 10 Percent for Right Facial Hypesthesia. A 10 percent rating has been in effect since service connection was granted for right facial hypesthesia pursuant to DC 8205, effective December 19, 2012. The 10 percent rating was primarily due to examination findings in 2011 (prior to discharge) which reflected decreased sensation to light touch and sharp testing over the entre right side of the face, specifically over the right V1-V3 (fifth cranial nerve). Under DC 8205, a 10 percent rating is warranted for moderate incomplete paralysis of the nerve; a 30 percent rating is warranted for severe incomplete paralysis of the nerve; and a 50 percent rating is warranted for complete paralysis of the nerve. The rating is dependent on relative degree of sensory manifestation or motor loss. 38 C.F.R. § 4.124a, DC 8205 (2019). In this case, DC 8205 is the appropriate rating code in this matter because it identifies the specific nerve affected and adequately encompasses the Veteran’s neurological symptoms. At the December 2019 VA examination, the Veteran reported that Botox and electric stimulation had not improved his condition. The paresthesias and/or dysesthesias in the cranial nerve V were described as moderate. Numbness in the upper face, eye, and/or forehead were also moderate. Sensory examination was absent in the upper face and forehead, mid face, and lower face. The examiner’s cranial nerve summary evaluation was of “severe, incomplete” cranial nerve paralysis. Based on the clinical findings and the examiner’s cranial nerve summary evaluation of “severe, incomplete,” the Board grants an increased rating of 30 percent for right facial hypesthesia pursuant to DC 8520. All reasonable doubt was resolved in the Veteran’s favor in making this favorable determination. REASONS FOR REMAND Entitlement to a TDIU. The Board finds that a remand is required for readjudication of the TDIU claim in the first instance in light of the Board’s grant of the higher initial ratings for the service-connected RUE hypesthesia and right facial hypesthesia. Due process requires that the first adjudication must be made by the agency of original jurisdiction (AOJ). Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The matters are REMANDED for the following action: Readjudicate the claim of entitlement to TDIU. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.