Citation Nr: 21000742 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 19-31 870 DATE: January 6, 2021 ORDER Entitlement to an initial rating in excess of 20 percent prior to June 25, 2019 is denied and entitlement to a rating in excess of 40 percent for service-connected right upper extremity neuropathy (RUE disorder) from June 25, 2019 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT 1. Prior to June 25, 2019, the Veteran’s RUE disorder was manifested by no more than mild incomplete paralysis of the right peripheral nerves. 2. Beginning June 25, 2019, the Veteran’s RUE disorder was manifested by severe incomplete paralysis of the right peripheral nerves. 3. The Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment. CONCLUSION OF LAW 1. The criteria for entitlement to an initial rating in excess of 40 percent for service-connected RUE disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 2. For the appeal period, the criteria for entitlement to a total disability evaluation based on unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 13, 1979 to December 5, 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter the Board notes that the Veteran’ s claim regarding his RUE neuropathy disorder was remanded by the Court of Appeals for Veterans Claims (CAVC) in March 2018. 1. Entitlement to an initial rating in excess of 40 percent for service-connected RUE disorder The Veteran contends that his service-connected RUE disorder warrants a higher disability rating. During the appellate period the Veteran’s claim for service connection for RUE neuropathy was evaluated at 40 percent effective June 25, 2019. See January 2020 rating decision. In a February 2020 Correspondence, the Veteran asserted that he continued to seek the highest possible evaluation for his disorder. See February 2020 NOD and Correspondence. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s RUE is currently evaluated under Diagnostic Code 8513, which pertains to all radicular groups. See 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under this criterion, a 20 percent rating is warranted where there is mild incomplete paralysis. A 40 percent rating for the major hand and a 30 percent rating for the minor hand is warranted where there is moderate incomplete paralysis; and a 70 percent rating for the major hand and a 60 percent rating for the minor hand is warranted when there is severe incomplete paralysis. Id. The highest rating of 90 for the major hand and 80 percent for the minor hand is warranted when there is complete paralysis. Id. After reviewing the evidence of record, the Board finds that the preponderance of the evidence supports a finding that the Veteran’s right upper extremity radiculopathy warrants an increased rating in excess of the currently 40 percent rating. The Veteran underwent a November 2019 examination where muscle strength testing of the upper extremities was normal (5/5). It was noted that the Veteran’s RUE disorder symptoms for intermittent pain and numbness were severe. His right paresthesias was noted a moderate. The examiner also indicated that the Veteran experiences cramps in his arms and hands predominately on the right side. The Board finds the November 2019 examination to be highly probative. Given the consistent description of symptoms since November 15, 2019, the Board finds that the Veteran’s right upper extremity disorder more closely approximates the criteria contemplated for severe incomplete paralysis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2018). A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15 (2018). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). In this case, since June 25, 2019, the Veteran has met the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a). The combined rating of his service-connected disabilities is 70 percent, including the bilateral factor of his service-connected shoulder disorders. See February 2020 rating decision code sheet. Further, in the November 2019 VA examination for neuropathy the examiner noted that the Veteran’s disability results in functional impact of his ability to sustain gainful employment. The Veteran submitted correspondence that indicated his former profession was a police officer and that he has not worked since September 30, 2013. Given the findings above, the Board finds the preponderance of evidence shows that while the Veteran’s service-connected disabilities contribute to his unemployability. Accordingly, a TDIU is granted. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.