Citation Nr: 21075886 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-15 985 DATE: December 21, 2021 REMANDED Entitlement to a rating in excess of 30 percent for tremor of the right hand is remanded. Entitlement to a 30 percent rating for tremor of the left hand is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 22, 2011 is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another is remanded. REASONS FOR REMAND The Veteran served in the Marines from September 1963 to September 1967, to include combat service in Vietnam. In a March 2014 rating decision, the Veteran was granted an increased rating of 30 percent for his right hand tremor and 20 percent for his left hand tremor, effective August 27, 2010. As this did not represent a full grant of benefits, the Veteran's claims remained on appeal. In May 2019, the Veteran testified during a videoconference hearing from Phoenix, Arizona before the undersigned Veteran's Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. Through a September 2019 Board decision, the Board granted 30 percent ratings for each hand. The Board remanded the claim for service connection for acoustic schwannoma and entitlement to a TDIU prior to December 22, 2011. The Veteran appealed the denial of a higher rating for the tremors of his hands to the United States Court of Appeals for Veterans Claims (Court). Through a Joint Motion for Partial Remand (JMPR) dated September 2020, the Court remanded the claims for higher ratings for tremors of the hands to the Board for additional development. The Board remanded the Veteran's claims in March 2021 to obtain a VA examination for the Veteran's tremors disability and to reevaluate the Veteran's claim for a TDIU. Unfortunately, the development was not in substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, another remand is required. The Board notes that while the development was pending, the Veteran filed a claim to reopen a previous denied claim of service connection for peripheral neuropathy of his bilateral upper extremities and bilateral lower extremities in the Appeals Modernization Act (AMA) system. An October 2021 Board decision addressed the deficiency with those claims and they were remanded for additional development. The Board does not have jurisdiction to address those claims. 1. Entitlement to a rating in excess of 30 percent for tremors of the right hand is remanded; and, 2. Entitlement to a rating in excess of 30 percent for tremors of the left hand is remanded. The March 2021 remand explained the defects in the previous Board decision, but for the sake of clarity, the Board will repeat them herein. As explained in the introduction section, the Veteran's claim was remanded by the Court to address deficiencies in the September 2019 decision, as follows: (1) adequately explain why the Veteran should be rated under Diagnostic Code 8103 instead of Diagnostic Code 8515; (2) adequately explain why under Diagnostic Code 8515 the Veteran does not have symptoms that are analogous to a higher rating; and (3) adequately explain why the Veteran's symptoms are a sensory manifestation with wholly sensory symptoms. As explained in the September 2019 Board decision, the Veteran's tremors are not a listed condition in VA's Schedule for Rating Disabilities. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20. The AOJ attempted to analogize the disability with Diagnostic Code 8515 (paralysis of the median nerve). The Board attempted to analogize the disability with Diagnostic Code 8103 (tic, convulsive). While the severity of a condition (and the assigment of a rating) is a question of fact for the Board to answer, the Board is not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In this instance, the assigment of a particular Diagnostic Code could change the Veteran's overall rating, especially if the evidence supports a severe rating. The Board has reviewed the medical record to determine the muscle/nerve groups involved, but has been unable to locate any reference to such a group. While the Veteran's strength and reflexes are both within normal limits, it is clear that the Veteran has a severe tremor that affects the use of his hands. In this regard, the May 2013 VA examination, which was the basis of the analogous rating to Diagnostic Code 8515, did not specify a nerve/muscle group and the March 2014 rating decision did not explain why the median nerves, as opposed to other nerves, were affected. Further, the VA examinations of record are "central nervous system" examinations, but these examinations do not ask the examiner about the peripheral nerves affected in the Veteran's hands. Thus, a remand is necessary to determine what, if any, nerve/muscle groups are affected. The Veteran's claims were remanded to obtain an "examination of the peripheral nervesnot an examination of the central nervous system." Further, "the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include strength, weakness, and nerves of the hand affected." Finally, "if no nerves of the hand are directly affected (i.e. lower radicular, radial, median, and/or ulnar), the examiner should address whether the Veteran's tremors equate to functional loss any of those nerves. The examiner must provide support for their findings." As explained in the introduction section, concurrent with the tremor claims on appeal, the Veteran submitted a claim for service connection for peripheral neuropathy. While the AOJ obtained an examination of the peripheral nerves as directed, it focused its analysis on the Veteran's claim for peripheral neuropathy. Thus, while the examinations contained a discussion of the "signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include strength, weakness, and nerves of the hand affected" it did not specifically address the Veteran's tremors, but rather generally discussed the effects from peripheral neuropathy. Given the unique disability picture related to the Veteran's tremor disability, the Board will request that the examination be performed by a neurologist so that the specific manifestations of the Veteran's tremor disability may be ascertained. 3. Entitlement to a TDIU prior to December 22, 2011 is remanded. 4. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another is remanded. As explained above, the Veteran was granted a TDIU effective December 22, 2011. In the Veteran's July 2013 application for a TDIU, he explained that he stopped working in February 2011, but was unable to find another job due to his tremors and PTSD. His increased rating claim for tremors was received in August 2010. Prior to this application, the Veteran submitted statements from fellow employees who indicate that he had severe trouble using his hands and doing work tasks such as moving a computer mouse. Therefore, a TDIU has been raised by the record in the context of his increased rating claim for tremors. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). Because a decision on the remanded issue of an increased rating for tremors could significantly impact a decision on the issue entitlement to a TDIU prior to December 22, 2011, the issues are inextricably intertwined. A remand of the claims for a TDIU prior to December 22, 2011 is required. Further, the Veteran has submitted correspondence indicating that his tremor disability has rendered him unable to perform his activities of daily living (ADLs). Thus, a claim of SMC based on the need for aid and attendance by another has been raised by the record. The matters are REMANDED for the following action: 1. Request the Veteran submit information related to a claim for SMC based on the need for aid and attendance of others. 2. Schedule the Veteran for an examination by a neurologist (to the extent possible) to determine the current severity of his service-connected hand tremor disability. The examiner should complete an examination of the peripheral nervesNOT an examination of the central nervous system. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include strength, weakness, and nerves of the hand affected. To the extent possible, the examiner should separate the symptoms from the Veteran's peripheral neuropathy disorder and his service-connected tremor disability. If no nerves of the hand are directly affected (i.e. lower radicular, radial, median, and/or ulnar), the examiner should address whether the Veteran's tremors equate to functional loss any of those nerves. The examiner must provide support for their findings. 3. After the above development, and any additionally indicated development, has been completed, adjudicate the issue of entitlement to a TDIU prior to December 22, 2011 and the issue of SMC based on aid and attendance. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.