Citation Nr: 21075307
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 20-00 305
DATE: December 20, 2021

ORDER

Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents and/or as secondary to service-connected squamous cell carcinoma is dismissed.

Entitlement to a disability rating in excess of 10 percent for right intercostal neuralgia of the musculocutaneous nerve is denied.

FINDINGS OF FACT

1. In an October 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim for entitlement to service connection for hypertension.

2. The Veteran's right intercostal neuralgia of the musculocutaneous nerve does not manifest as severe incomplete paralysis in the extremity.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the claim for entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents and/or as secondary to service-connected squamous cell carcinoma, have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for a disability rating in excess of 10 percent for right intercostal neuralgia of the musculocutaneous nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8517.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from February 1966 to January 1967, during which time he was deployed to the Republic of Vietnam (RVN).

This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) February 2018 and February 2019 rating decisions of the AOJ.

In May 2021 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the May 2021 remand, the Board finds that the AOJ conducted additional development as instructed, and that there has been substantial compliance with the remand directives.

Dismissal of Appeal

1. Entitlement to service connection for hypertension, claimed as due to exposure to herbicide agents and/or as secondary to service-connected squamous cell carcinoma

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The Veteran was granted service connection for his hypertension in an October 2021 rating decision. The grant of service connection encompasses the entire period of appeal. Because this is considered a full grant of the benefits sought, this issue is dismissed as moot. Grantham v. Brown, 114 F. 3d. 1156 (Fed. Cir. 1997).

Increased Rating

2. Entitlement to a disability rating in excess of 10 percent for right intercostal neuralgia of the musculocutaneous nerve

The Veteran claims that his right intercostal neuralgia warrants an increased disability rating.

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 ; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The Veteran's right intercostal neuralgia of the musculocutaneous nerve is rated under DC 8517. Under DC 8517, contemplating paralysis of the musculocutaneous nerve, a noncompensable (zero) percent rating is warranted for mild incomplete paralysis of the major and minor extremities. A 10 percent rating is warranted for moderate incomplete paralysis in the major and minor extremities. A 20 percent rating is warranted for severe incomplete paralysis in the major and minor extremities. Complete paralysis of the musculocutaneous nerve is rated as 30 percent disabling for the major extremity and 20 percent disabling in the minor extremity and contemplates weakness but not loss of flexion of the elbow and supination of the forearm. 38 C.F.R. § 4.124a, DC 8517.

The Veteran was seen for a VA examination in February 2018 to determine the severity of his right upper extremity neuralgia. The examiner found that the Veteran had moderate incomplete paralysis of the musculocutaneous nerve in his right upper extremity. A sensory exam revealed normal sensation testing, and his reflexes were all normal. However, the Veteran did experience moderate constant pain, and severe intermittent pain in his right upper extremity, as well as severe numbness and severe paresthesias and/or dysesthesias. 

The Veteran's next VA examination was in September 2019. At the time, the Veteran denied any pain, paresthesias/dysesthesias, and/or numbness in any of his extremities. Muscle strength, reflex, and sensory examinations all showed normal results. There was no paralysis, incomplete or otherwise, noted with regard to the Veteran's musculocutaneous nerve in his right upper extremity. 

In January 2020 the Veteran was seen for another examination to determine the severity of his neuralgia. As with before, there was no evidence of any pain, paresthesias/dysesthesias, and/or numbness in any of his extremities. Muscle strength, reflex, and sensory examinations all showed normal results. However, an examination of the musculocutaneous nerve in his right arm showed moderate incomplete paralysis. 

Finally, in September 2021, the Veteran was seen for another VA examination pursuant to the Board's May 2021 remand directives. The examiner noted that there is no evidence of any impairment of the Veteran's musculocutaneous nerves, though there was some mild incomplete paralysis of his right and left median nerves. 

In October 2021 the examiner submitted an addendum medical opinion clarifying their findings. The examiner noted that the Veteran exhibited symptoms of "pain, numbness, tingling, burning, and jolts," and that the testing showed "nerve involvement," there was no evidence of "any discomfort when ulnar and median nerves were tested." The examiner continued, stating that "after an extensive review of medical literature," there is no evidence that shows a "correlation between the musculocutaneous nerve and the current peripheral nerve involvements." The Board notes that the examiner accidentally referred to the Veteran's condition as "diabetic peripheral neuropathy" in the September 2021 examination report, but later clarified they meant simply "peripheral neuropathy." 

Based on the above, the Board finds that a rating in excess of 10 percent for the Veteran's right intercostal neuralgia of the musculocutaneous nerve is not warranted. At no point during the period of appeal did the Veteran's condition manifest in such a way that he experienced severe incomplete paralysis in his right upper extremity.

At numerous points during the period on appeal the Veteran contends that his musculocutaneous neuralgia in his right arm warrants a higher disability rating. In his June 2020 Notice of Disagreement, he states that he "[has] to get to the 20% level," on the basis that he has had a spinal cord stimulator implanted. The Board is sympathetic to the Veteran's contentions, however, the rating criteria for his neuropathic condition do not take into consideration whether certain treatments or implants are required. 

As such, the preponderance of the evidence is against finding that the Veteran's right intercostal neuralgia of the musculocutaneous nerve warrants a disability rating in excess of 10 percent.

The Veteran's claim is denied.

In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

 

 

T. Berry

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Neville, Associate 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.