Citation Nr: 21000634 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 20-26 790 DATE: January 5, 2021 ORDER An initial rating higher than 20 percent for right lower extremity bradykinesia is denied. REMANDED An initial rating higher than 30 percent for Parkinson's disease with dementia is remanded. FINDING OF FACT The Veteran’s right lower extremity bradykinesia is manifested by moderate incomplete paralysis. CONCLUSION OF LAW The criteria for an initial rating higher than 20 percent for right lower extremity bradykinesia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Air Force from December 1964 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision. Following an April 2020 statement of the case, the Veteran submitted a May 2020 VA Form 20-0996, Request for Higher-Level Review. If accepted, this form would allow the Veteran to opt-in to VA’s modernized review system, also known as the Appeals Modernization Act (AMA). However, the form was rejected in June 2020 because the Veteran did not elect to withdraw his claims from the current “legacy” system. The Veteran’s representative submitted a December 2020 Informal Hearing Presentation which addressed the above-listed issues, as well as increased rating claims for the right upper extremity, speech changes, loss of automatic movements of the face, and erectile dysfunction. However, the Veteran’s June 2020 VA Form 9 substantive appeal specifically limited his appeal only to the two issues listed above. Increased Rating Right lower extremity bradykinesia The Veteran is currently assigned a 20 percent rating for his right lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which addresses paralysis of the sciatic nerve. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes 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. 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. Notably, the Veteran’s bradykinesia is a consequence of his Parkinson’s disease, and therefore includes manifestations such as cogwheel rigidity, retropulsion and dystonia. Cogwheel rigidity is the rigidity of a muscle that gives way in a series of little jerks upon being passively stretched. See Dorland’s Illustrated Medical Dictionary 1672 (31st ed. 2007). Retropulsion is a tendency to walk backward involuntarily. Id. at 1661. Dystonia refers to dyskinetic movements (impairment of voluntary movements). Id. at 590. These manifestations fall within the general impairment of motor function contemplated by DC 8520. Regarding impairment of motor functions, private records from August 2011 and November 2011 documented a shuffling gait on the right side and mild impairment of foot tapping, respectively. No cogwheel rigidity was present. The Veteran’s statements from this time reflect complaints of the right foot “dragging.” He made similar complaints in April 2013 VA records, though no significant findings were present on examination. Additional records from November 2014 and March 2015 noted a supple and spry gait. Retropulsion was specifically absent in November 2014. VA records from June 2016 documented mild cogwheel rigidity, but no retropulsion or decreased stride. In September 2016, strength of 4/5 was documented only in the iliopsoas muscle, with the rest of the leg being normal, and the Veteran had a steady gait. VA records from November 2016, May 2017 and June 2017 show a steady, unimpaired gait and strength of 5/5. However, he reported falling once in the last 12 months. VA examinations in February 2018 and October 2018 documented “mild” bradykinesia. VA records from May 2018 and December 2018 noted some distal dystonia and slight retropulsion. In May 2019, the Veteran had mild muscle weakness but a steady gait. Regarding sensory disturbance, decreased sensation was documented in September 2016. Sensation was specifically found to be intact in August 2011, October, and May 2019. Regarding loss of reflexes, the available records show normal reflexes throughout the appeal period, except in August 2011 when the knee reflex was noted to be hyperactive at 3+ (normal is 2+). The evidence does not demonstrate any trophic changes or muscle atrophy. Based on the above, the Board finds that the disability is primarily manifested by impairment of motor function, with little effect on sensation and reflexes. The Board thus finds that the level of impairment is most analogous to no more than moderate incomplete paralysis because the impairment of motor function during the appeal period was consistent with this level of severity. The Veteran was noted to have “mild” cogwheel rigidity in September 2016, “mild” bradykinesia in February 2018 and October 2018, “slight” retropulsion in May 2018, “some” dystonia in May 2018 and “occasional” dystonia in December 2018, and “mild” muscle weakness in May 2019. The use of these descriptive terms by examiners or treating physicians is not dispositive of the claim. Nevertheless, they are highly probative in assessing the Veteran’s disability under the rating criteria. The Board acknowledges the lay assertions from the Veteran, including the dragging of his right foot and fear of falling due to an unsteady gait. However, the evidence only documents a single fall during the appeal period, with multiple findings of a normal, steady, or supple gait. When viewed alongside the medical evidence, his assertions do not reflect a level of impairment greater than that of moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating higher than 20 percent for the Veteran’s right lower extremity bradykinesia. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND An initial rating higher than 30 percent for Parkinson's disease with dementia Initially, the Board notes that the Veteran is currently assigned separate ratings for various manifestations of his Parkinson’s disease, including right upper extremity rigidity and tremor, temporomandibular joint disorder, right lower extremity bradykinesia, speech changes, loss of smell, erectile dysfunction, and loss of automatic face movements. Except for the right lower extremity disability discussed above, these ratings are not on appeal. The rating on appeal is for Parkinson’s disease with dementia, which is currently assigned a 30 percent rating under DC 8004-9326. 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 evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 8004 provides a single 30 percent rating for paralysis agitans. DC 9326 is part of the General Rating Formula for Mental Disorders (General Formula) found in 38 C.F.R. § 4.130. Although the Veteran was provided VA examinations for his Parkinson’s disease, these examinations were not specific to the rating criteria for the General Formula. In order to accurately assess the appropriate rating for the disability on appeal, such an examination must be provided. The matter is REMANDED for the following action: Schedule the Veteran for a mental disorders examination by an appropriate clinician to determine the current severity of his service-connected Parkinson’s disease with dementia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of mental health symptoms. To the extent possible, the examiner should identify any mental health symptoms and social and occupational impairment due to Parkinson’s disease with dementia alone. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.