Citation Nr: 21066377 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 12-00 610 DATE: October 29, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for dysarthria is denied. Entitlement to an initial evaluation in excess of 30 percent for dysphagia is denied. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) prior to December 31, 2014, is granted. FINDINGS OF FACT 1. The Veteran's dysarthria is productive of marked speech impairment, but she does not have loss of one-half or more of the tongue or an inability to communicate by speech. 2. The Veteran's dysphagia is not productive of a severe esophageal stricture permitting liquids only. 3. Prior to December 31, 2014, the Veteran meets the schedular requirement for TDIU, and her service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for dysarthria have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.114, Diagnostic Code 7202. 2. The criteria for an initial evaluation in excess of 30 percent for dysphagia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.114, Diagnostic Code 7203. 3. Prior to December 31, 2014, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1972 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2014. A transcript of that hearing has been associated with the claims file. The Board remanded the issues on appeal for further development in December 2014 and July 2018. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluation Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Dysarthria The Veteran is currently assigned a 30 percent evaluation for dysarthria, pursuant 38 C.F.R. § 4.114, Diagnostic Code 7202. Under that diagnostic code 7202, a 30 percent rating is contemplated for loss of all or part of the tongue that results in a marked speech impairment. A 50 percent rating is warranted for the loss of one-half or more of the tongue, and a 100 percent rating is assigned for loss of the tongue that results in an inability to communicate by speech. As a preliminary matter, the Board notes that the word "marked" is not defined in VA's Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The Board observes that "marked" is defined as "noticeable; obvious; appreciable; distinct; conspicuous." See Webster's New World Dictionary 828 (1988). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial evaluation for dysarthria. VA medical records document diagnoses of dysarthria secondary to a MRSA infection and describe the Veteran's speech as garbled and labored. See e.g. VA medical records dated in January 2011, February 2011, March 2011, and September 2011. Her speech has also been noted as being slow and slurred. See e.g. VA medical record dated in December 2010 and a July 2009 note from primary care provider. A December 2009 VA examiner also found that the Veteran had "some dysarthria" and noted that cranial nerves II-XII were intact and functioning. The Veteran was afforded a VA examination in September 2016 during which she reported that her speech condition had remained unchanged and had stabilized over the past five to six years. She indicated that she has difficulty talking and enunciating words, as well as mouth and lower jaw numbness, and trouble projecting sound. Upon evaluation, the examiner noted that the Veteran's speech was mildly slurred, garbled, and slowed, but she did not have difficulties findings words. Cranial nerve testing revealed normal results, except for moderate impairment of the left and right cranial nerve IX (motor: swallow, cough, palate evaluation, "say ah," gag reflex if indicated) and moderate impairment of the left and right cranial nerve XII (motor: protrude tongue, move tongue from side to side). Sensory testing revealed decreased results for the lower face. The Veteran was also afforded a VA examination in March 2017 at which time the examiner noted continued difficulty with enunciation, a soft voice, and slightly slurred speech. The examiner found that the Veteran was suffering from mild difficulty speaking. Cranial nerve testing at that time was normal, except for moderate impairment of the left and right cranial nerve XII. Sensory testing again revealed decreased sensation in the left and right lower face. The examiner also found incomplete, moderate impairment in cranial nerve IX. The evidence clearly shows that the Veteran has speech impairment. However, the Board finds that her disability is productive of marked speech impairment, which is contemplated in the 30 percent evaluation. The lay and medical evidence does show that the Veteran has symptomatology or impairment that would approximate loss of half of the tongue as required for a 60 percent evaluation or an inability to communicate by speech as required for a 100 percent evaluation. The record does not reflect, and the Veteran has not asserted, that she has lost any portion of her tongue. Rather, the evidence shows slow, slurring, garbled, and labored speech, but she does not have an inability to communicate with speech, as demonstrated during the June 2014 hearing. Therefore, the Board finds that a higher initial evaluation is not warranted under Diagnostic Code 7202. The Board has also considered whether the Veteran may be entitled to a higher initial evaluation for dysarthria under any other potentially applicable diagnostic code. However, a 30 percent evaluation is the maximum schedular evaluation available for chronic laryngitis under Diagnostic Code 6516. For complete aphonia, Diagnostic Code 6519 provides that a 60 percent evaluation is assigned for the constant inability to speak above a whisper and that a 100 percent is warranted where there is a constant inability to communicate by speech. However, as discussed above, the evidence does not show that the Veteran has an inability to speak or an inability to speak above a whisper, and incomplete aphonia is rated under Diagnostic Code 6516. As such, a higher initial evaluation is not warranted under these other diagnostic codes. In addition, under 38 C.F.R. § 4.124a, Diseases of the Cranial Nerves, an evaluation in excess of 30 percent would only be warranted in certain instances where there was complete paralysis found. The September 2016 and March 2017 VA examinations did not find complete paralysis during cranial nerve testing. As such, an evaluation in excess of 30 percent is also not warranted under any of the relevant Diagnostic Codes under 38 C.F.R. § 4.124a. Based on the foregoing, the Board finds that the Veteran is not entitled to an initial evaluation in excess of 30 percent for dysarthria. Dysphagia The Veteran's dysphagia is currently assigned a 30 percent evaluation, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7203. Under that diagnostic code, a 30 percent evaluation is contemplated for moderate esophageal stricture. A 50 percent evaluation is warranted when the esophageal stricture is severe, permitting liquids only. An 80 percent evaluation is assigned when the esophageal stricture permits the passage of liquids only and produces a marked impairment of general health. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial evaluation for dysphagia. Medical records dated in March 2016 show that the Veteran reported trouble eating and having a feeling that meat was getting stuck in her throat. The treatment provider noted that she had mechanical dysphagia that was chronic and unchanged and that the Veteran continued to have difficulty maintaining her weight. As a result, a dietitian consultation was scheduled during which the Veteran reported great difficulty eating meats or tough foods and stated that she was drinking ice water in order to eat her food. The dietitian indicated that she was tolerating applesauce, yogurt, toast (sometimes), cheese, cottage cheese, eggs, and canned or frozen fruit. Food alternatives, such as high calorie smoothies, were discussed. The Veteran was afforded a VA examination in September 2016 at which time she reported that she mainly drank her food and was drinking Ensure. The Veteran indicated that was eating some solid food, but she could not eat any large particle food or foods with a rough texture, such as meats, nuts, or seeds. She again reported that drinking ice water with her food was helpful. The Veteran stated that she would choke or regurgitate her food occasionally and noted that her swallowing would become worse as she tired. It was noted that she was not taking medication for the disorder. The examiner found no esophageal stricture, spasm, or acquired diverticulum of the esophagus and opined that the Veteran's disorder was moderate in nature, as her ability to eat solid foods was limited. The Board finds that the Veteran's symptomatology throughout the appeal period has more closely approximated a moderate esophagus stricture. While the medical records and lay evidence show difficulty with eating, the record does not indicate that the Veteran consumes only liquids, as she is able to eat some solid foods. Nor does the evidence suggest a marked impairment of general health. Further, the Board notes that the September 2016 VA examiner characterized the Veteran's disorder as moderate. Therefore, the Board concludes that a higher initial evaluation is not warranted for dysphagia. TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following are evaluated as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prior to December 31, 2014, the Veteran was service-connected for migraine headaches, evaluated as 30 percent disabling; dysarthria, evaluated as 30 percent disabling; dysphagia, evaluated as 30 disabling; and a head tremor, evaluated as noncompensable. Her combined evaluation was 70 percent from August 6, 2009, to December 30, 2014. Thus, the Veteran meets the schedular criteria for TDIU under § 4.16(a), and the remaining question is whether the Veteran's service-connected disabilities rendered her unable to secure and to follow substantially gainful employment. For the reasons set forth below, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence of record shows that the Veteran's service-connected disabilities rendered her unable to secure and to follow substantially gainful employment prior to December 31, 2014. During the June 2014 hearing, the Veteran testified that she had been seeking a certificate to become a teacher and worked as a waitress prior to her surgery in November 2007. She indicated that she had difficulty communicating and avoided people and talking. In a May 2020 VA Form 21-8940, the Veteran reported that she last worked full-time in March 2008 and had completed three years of college. During a November 2010 VA medical appointment, the Veteran's treating doctor opined that her work capacity was severely diminished by chronic back pain. The doctor also noted that the Veteran's mental health interfered with her ability to work. However, neither of those conditions were service-connected prior to December 31, 2014, and therefore, they may not be considered in this decision. During the appeal period, the Veteran had some participation in VA's vocational rehabilitation program. However, the program was discontinued in June 2012. The counselor indicated that the Veteran's case was transferred after she relocated and was then interrupted for medical reasons. The counselor also indicated that the Veteran had several nonservice-connected medical issues, as well as financial and housing difficulties, which interfered with her ability to complete the remaining classes needed for her vocational goal. It was noted that she was unable to return to her objectives or find work due to nonservice-connected disabilities. The counselor opined that the Veteran was unemployable, but did not specifically state which disorders caused her unemployability. VA medical records indicate the presence of slurred or garbled speech throughout the relevant time period. However, the medical providers also indicated that the Veteran's clarity of speech was adequate. The Veteran was afforded a VA examination in connection with her dysarthria in September 2016. During that examination, the VA examiner opined that the Veteran's speech was mildly slurred, garbled, and slowed. The examiner opined that the condition would impact the Veteran's ability to work in that she would experience functional limitations with any activity or endeavor requiring good communication skills, as the Veteran was unable to articulate in a normal manner. A September 2016 VA examiner found that the Veteran's dysphagia did not impact her ability to work. Regarding migraine headaches, a September 2016 VA examination and a March 2017 VA medical opinion noted that the Veteran was experiencing bi-monthly prostrating attacks, but opined that the migraines did not result in severe economic inadaptability. Records from the Social Security Administration (SSA) show that the Veteran was granted disability benefits based on the finding of an organic brain syndrome with an onset in August 2007. It was noted that she had previously worked in restaurants and as a district manager at a retail photography studio. The records also indicate that the Veteran had remarkable difficulty speaking clearly. In light of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence of record shows that the Veteran's service-connected disabilities, particularly her dysarthria, would make it difficult to maintain substantially gainful employment. Indeed, the September 2016 VA examiner had opined that the Veteran would experience functional limitations with any activity requiring good communication skills, as the Veteran was unable to articulate in a normal manner. SSA records also indicate had remarkable difficulty speaking clearly. Given the Veteran's education and work experience, the Board finds that limiting employment options to positions that do not require communication skills and/or which could accommodate the Veteran's dysarthria would significantly limit her ability to work. Accordingly, the Board finds that a TDIU is warranted in this case prior to December 31, 2014. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert, 1 Vet. App. 49, 55. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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.