Citation Nr: 21066008 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 19-32366A DATE: October 28, 2021 ORDER For the increased rating period on appeal from August 14, 2018, a rating of 20 percent for spinal meningitis residuals is granted. For the increased rating period on appeal from August 14, 2018, a rating of 40 percent for a right hand ulnar nerve disability is granted. For the increased rating period on appeal from August 14, 2018, a rating of 30 percent for a left hand ulnar nerve disability is granted. For the increased rating period on appeal from August 14, 2018, a rating of 30 percent for a right lower extremity popliteal nerve disability is granted. For the increased rating period on appeal from August 14, 2018, a rating of 30 percent for a left lower extremity popliteal nerve disability is granted. For the initial rating period on appeal from August 14, 2018, a 30 percent rating for bowel functional impairment is granted. REMANDED An increased disability rating in excess of 20 percent for spinal meningitis residuals remanded. An increased disability rating in excess of 40 percent for a right hand ulnar nerve disability remanded. An increased disability rating in excess of 30 percent for a left hand ulnar nerve disability remanded. An increased disability rating in excess of 30 percent for a right lower extremity popliteal nerve disability remanded. An increased disability rating in excess of 30 percent for a left lower extremity popliteal nerve disability remanded. An increased disability rating in excess of 30 percent for bowel functional impairment remanded. FINDINGS OF FACT 1. For the increased rating period on appeal from August 14, 2018, spinal meningitis residuals have been manifested by back pain and an abnormal gait. 2. For the increased rating period on appeal from August 14, 2018, the right and left hand ulnar nerve disabilities have more nearly approximated severe incomplete paralysis of the ulnar nerve in a major and minor upper extremity. 3. For the increased rating period on appeal from August 14, 2018, the right and left lower extremity nerve disabilities have more nearly approximated severe incomplete paralysis of the popliteal nerve. 4. For the initial rating period on appeal from August 14, 2018, the bowel disability manifested in episodes of diarrhea, constipation, and severe abdominal distress. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the increased rating period on appeal from August 14, 2018, the criteria for a 20 percent disability rating, and no higher, for spinal meningitis residuals have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, Diagnostic Codes 5242, 8019. 2. Resolving reasonable doubt in favor of the Veteran, for the increased rating period on appeal from August 14, 2018, the criteria for a 40 percent disability rating, and no higher, for a right hand ulnar nerve disability have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8516. 3. Resolving reasonable doubt in favor of the Veteran, for the increased rating period on appeal from August 14, 2018, the criteria for a 30 percent disability rating, and no higher, for a left hand ulnar nerve disability have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8516. 4. Resolving reasonable doubt in favor of the Veteran, for the increased rating period on appeal from August 14, 2018, the criteria for a 30 percent disability rating, and no higher, for a right lower extremity popliteal nerve disability have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8521. 5. Resolving reasonable doubt in favor of the Veteran, for the increased rating period on appeal from August 14, 2018, the criteria for a 30 percent disability rating, and no higher, for a left lower extremity popliteal nerve disability have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8521. 6. Resolving reasonable doubt in favor of the Veteran, for the initial rating period on appeal from August 14, 2018, the criteria for a 30 percent disability rating, and no higher, for a bowel disability have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from April 1981 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision. In November 2019, the Veteran opted for a Board hearing. In January 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In this Legacy appeal the Board derives jurisdiction from a timely notice of disagreement (NOD). In this case, the October 30, 2018 rating decision was issued on November 6, 2018. The Veteran's NOD was received on November 1, 2019, within one year of issuance of the rating decision, so is a timely NOD to confer on the Board Legacy jurisdiction over the appealed issues. While the Veteran used an Appeals Modernization Act (AMA) NOD form, even an AMA form is valid to serve as a Legacy NOD, as the NOD form, in this case, identifies the decision appealed and the issues appealed, and AMA technical filing rules do not apply to Legacy cases. A precedential decision issued by the U.S. Court of Appeals for Veterans Claims (CAVC) in Hall v. McDonough (Vet. App. Docket 19-8717, October 18, 2021) underscores the Court's treatment of the Board's attempt to dismiss a legacy claim based on the lack of jurisdiction because the appeal was filed on an incorrect form. The Hall Court at length distinguishes the "procedural filing" rules such as which form to use from questions of Board "jurisdiction," concluding that the procedural rules as to which form was used cannot limit Board jurisdiction. In this case, to the extent the Board grants higher ratings, the purpose of the SOC is rendered moot. The purpose of the SOC is to provide the Veteran a summary of the evidence, summary of the legal authority, and basis for denial of the claim to allow the Veteran to present written and/or oral arguments before the Board to support the appeal. 38 C.F.R. § 19.29. Neither a SOC nor a substantive appeal is required for Board jurisdiction. While the instant decision grants higher ratings as to all issues, the higher ratings are less than the maximum schedular rating; therefore, the Veteran is presumed to be seeking the maximum possible benefit for the ratings appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). To the extent even higher ratings were not granted, the Board will remand for the issuance of a SOC. The remanded issues are an increased rating in excess of 20 percent for spinal meningitis residuals, in excess of 40 percent for a right hand ulnar nerve disability, in excess of 30 percent for a left hand ulnar nerve disability, in excess of 30 percent for a right lower extremity popliteal nerve disability, in excess of 30 percent for a left lower extremity popliteal nerve disability, and in excess of 30 percent for bowel functional impairment. 1. Increased Rating for Spinal Meningitis with Back Pain 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; 38 C.F.R., Part 4. 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). For the increased rating period on appeal, the spinal meningitis with back pain disability has been rated as 10 percent disabling under Diagnostic Code 8019. Under Diagnostic Code 8019 for meningitis, cerebrospinal, epidemic, a minimum 10 percent rating is assigned for ascertainable residuals and a 100 percent rating is provided when meningitis is an active febrile disease. A Note following Diagnostic Code 8025 indicates that it is required for the minimum ratings for residuals under Diagnostic Code 8000-8025 that there be ascertainable residuals. At the outset, the Board has considered a 100 percent rating under Diagnostic Code 8019, which contemplates active febrile disease for meningitis, cerebrospinal epidemic. 38 C.F.R. § 4.124a, Diagnostic Code 8019. In this case, the evidence of record does not reflect active febrility as part of the service-connected meningitis disability picture, and the Veteran has not alleged otherwise. In this case, at the January 2021 Board hearing the Veteran testified to various residual symptoms of meningitis, to include severe back pain causing an altered gait. The September 2019 VA examination report reflects that the VA examiner assessed altered gait as related to the service-connected meningitis. Diagnostic Code 5242 warrants a 20 percent rating for muscle spasm or guarding severe enough to result in an abnormal gait. As noted in September 2019 VA examination report and at the January 2021 Board hearing, the meningitis disability has been manifested as an abnormal gait. See 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine (DCs 5235 to 5243) (assigning a 20 percent rating, in pertinent part, for abnormal gait). As such, in this case, the Board will resolve reasonable doubt in favor of the Veteran to find that the aforementioned meningitis residual symptoms have been present throughout the rating period on appeal from August 14, 2018. While the evidence has met the criteria for a 20 percent disability rating, the evidence of record does not meet the criteria for a rating in excess of 20 percent. A disability rating of 20 or higher would only be warranted for forward flexion more closely approximating less than 30 degrees, or favorable ankylosis of the entire thoracolumbar spine, and/or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12 month period, none of which is present here, and the Veteran has not alleged otherwise. 38 C.F.R. §§ 4.3, 4.7. 2. Increased Rating for Right Hand Ulnar Nerve Disability 3. Increased Rating for Left Hand Ulnar Nerve Disability For the increased rating period on appeal, the right hand ulnar nerve disability has been rated as 30 percent disabling under Diagnostic Code 8516, and the left hand ulnar nerve disability has been rated as 20 percent disabling. Diagnostic Codes 8516, 8616, and 8716 provide ratings for paralysis, neuritis, and neuralgia of the ulnar nerve. A 10 percent disability rating is warranted for mild paralysis of the ulnar nerve in the major (dominant) upper extremity or minor (non-dominant) upper extremity. A 30 percent disability rating is warranted for moderate paralysis of the ulnar nerve in the major upper extremity; a 20 percent rating is warranted for moderate incomplete paralysis of the ulnar nerve in the minor upper extremity. A 40 percent disability rating is warranted for severe incomplete paralysis of the ulnar nerve in a major upper extremity; 30 percent rating is warranted for severe incomplete paralysis of the ulnar nerve in a minor upper extremity. A 60 percent disability rating (the maximum) is warranted for complete paralysis of the ulnar nerve in the major upper extremity; a 50 percent rating is warranted for complete paralysis of the ulnar nerve in the minor upper extremity. 38 C.F.R. § 4.124a. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from August 14, 2018, the right and left hand ulnar nerve disabilities have been manifested by severe incomplete paralysis of the ulnar nerve. Diagnostic Code 8516 warrants a 40 percent rating for severe incomplete paralysis of the ulnar nerve in a major upper extremity and a 30 percent rating for severe incomplete paralysis in a minor upper extremity. In this case, at the January 2021 Board hearing the Veteran testified to symptoms of worsening hand pain, which impacted the ability to button a shirt, tie shoelaces, and grasp objects. The Veteran also testified to symptoms of numbness and cramping, which impacted the ability to open and close the hands. As such, in this case, the Board will resolve reasonable doubt in favor of the Veteran to find that the aforementioned right and left hand ulnar symptoms have been present throughout the rating period on appeal from August 14, 2018. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the right hand (major) ulnar nerve disability picture more nearly approximates the criteria described for a 40 percent rating, and the left hand (minor) ulnar nerve disability picture more nearly approximates the criteria described for a 30 percent rating for the increased rating period on appeal from August 14, 2018. See 38 C.F.R. §§ 4.3, 4.7, 4.71a. 4. Increased Rating for Right Lower Extremity Nerve Disability 5. Increased Rating for Left Lower Extremity Nerve Disability For the increased rating period on appeal, the right and left lower extremity nerve disabilities have been rated as 20 percent disabling under Diagnostic Code 8521. Under Diagnostic Code 8521 a 20 percent disability rating is warranted for moderate incomplete paralysis of the external popliteal nerve. A 30 percent disability rating is warranted for severe incomplete paralysis of the external popliteal nerve, and a 40 percent disability rating is warranted for complete paralysis of the external popliteal nerve, manifested by symptoms of foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened abduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from August 14, 2018, the right and left lower leg popliteal nerve disabilities have been manifested by severe incomplete paralysis of the external popliteal nerve. Diagnostic Code 8521 warrants a 30 percent rating for severe incomplete paralysis of the popliteal nerve. In this case, at the January 2021 Board hearing the Veteran testified to symptoms of worsening bilateral leg pain, which impacted the ability to walk, lift the legs, and sleep. The Veteran also testified to symptoms of severe numbness and pain in the legs. As such, in this case, the Board will resolve reasonable doubt in favor of the Veteran to find that the aforementioned right and left leg popliteal nerve symptoms have been present throughout the rating period on appeal from August 14, 2018. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the right and left lower extremity popliteal nerve disability pictures more nearly approximate the criteria described for a 30 percent rating for the increased rating period on appeal from August 14, 2018. See 38 C.F.R. §§ 4.3, 4.7, 4.71a. 6. Initial Rating for Bowel Functional Impairment For the initial rating period on appeal, the bowel disability has been rated as zero percent disabling under Diagnostic Code 7319. Pursuant to Diagnostic Code 7319, a maximum schedular 30 percent disability rating is warranted for severe irritable colon syndrome resulting in diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from August 14, 2018, the bowel disability has manifested in episodes of diarrhea, constipation, and severe abdominal distress. Diagnostic Code 7319 warrants a 30 percent rating for a severe bowel disability resulting in diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. In this case, at the January 2021 Board hearing the Veteran testified to symptoms of diarrhea, constipation, and severe abdominal distress. As such, in this case, the Board will resolve reasonable doubt in favor of the Veteran to find that the aforementioned bowel disability symptoms have been present throughout the rating period on appeal from August 14, 2018. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the bowel disability picture more nearly approximates the criteria described for a 30 percent rating for the initial rating period on appeal from August 14, 2018. See 38 C.F.R. §§ 4.3, 4.7, 4.114. Considering the Board's actions in the instant decision, a combined 100 percent disability rating has been established for the entire rating period on appeal from August 14, 2018. At the January 2021 Board hearing, the Veteran indicated that a combined 100 percent disability rating for the entire period from August 14, 2018 would fully satisfy the appeal. The Board finds the Veteran's waiver of the remaining aspects of the appeal, to include consideration of a total disability rating due to the service-connected disabilities (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), was knowing and intelligent, was made with representation and in the presence of the representative, was supported by the Veteran's testimony, and is consistent with the other evidence of record. For these reasons, any questions of a TDIU are rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). REASONS FOR REMAND 7. Rating for Spinal Meningitis Residuals (whether excess 20 percent) 8. Rating for Right Hand Ulnar Nerve (whether excess 40 percent) 9. Rating for Left Hand Ulnar Nerve (whether excess 30 percent) 10. Rating for Right Lower Extremity Popliteal Nerve (whether excess 30 percent) 11. Rating for Left Lower Extremity Popliteal Nerve (whether excess 30 percent) 12. Rating for Bowel Functional Impairment (whether excess 30 percent) The instant decision grants multiple higher ratings, resolving reasonable doubt in the Veteran's favor to grant the highest ratings the Board finds the evidence supports. The Board has maximized benefits for the Veteran by resolving reasonable doubt to grant the higher benefit where the evidence more nearly approximated the next higher rating, even though the evidence did not show that the higher rating criteria were met. To the extent there are still higher ratings theoretically available to the Veteran, in order to provide the Veteran due process notice of the higher rating criteria available and to give him an opportunity to present any evidence or contentions as to why even higher ratings may be warranted, the Board remands these less-than-maximum higher rating issues to the Agency of Original Jurisdiction (AOJ) for issuance of a SOC. The matters are REMANDED for the following action: Issue a SOC that addresses the remaining aspect of the issues of an increased rating in excess of 20 percent for spinal meningitis residuals, in excess of 40 percent for a right hand ulnar nerve disability, in excess of 30 percent for a left hand ulnar nerve disability, in excess of 30 percent for a right lower extremity popliteal nerve disability, in excess of 30 percent for a left lower extremity popliteal nerve disability, and in excess of 30 percent for bowel functional impairment. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.