Citation Nr: 21077486 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 15-22 789 DATE: December 29, 2021 ORDER Entitlement to a rating of 60 percent for left hand tremor for the period beginning April 30, 2021 is granted. Entitlement to a rating of 70 percent for right hand tremor for the period beginning April 30, 2021 is granted. REMANDED Entitlement to an initial compensable rating for a left hand tremor for the period prior to June 16, 2017 is remanded. Entitlement to an initial rating in excess of 10 percent for the period since June 16, 2017, but prior to April 30, 2021, for left hand tremor is remanded. Entitlement to an initial compensable rating for a right hand tremor for the period prior to June 16, 2017 is remanded. Entitlement to an initial rating in excess of 10 percent for the period since June 16, 2017, but prior to April 30, 2021, for right hand tremor is remanded. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the period beginning April 30, 2021 the Veteran's left hand tremor is more appropriately characterized as severe incomplete paralysis of all radicular groups, and has been manifested by symptoms such as chronic pain, weakness, chronic numbness, and hypoactive reflexes. 2. For the period beginning April 30, 2021 the Veteran's right hand tremor is more appropriately characterized as severe incomplete paralysis of all radicular groups, and has been manifested by symptoms such as chronic pain, weakness, chronic numbness, and hypoactive reflexes. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 60 percent but no higher, for left hand tremor for the period beginning April 30, 2021 have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.73, 4.124a, Diagnostic Code 8513. 2. The criteria for entitlement to a rating of 70 percent but no higher, for right hand tremor for the period beginning April 30, 2021 have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.73, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1998 to March 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board denied initial compensable ratings for the left and right hand tremors for the period prior to June 16, 2017 and granted higher initial 10 percent ratings for these disabilities for the period since June 16, 2017. The Veteran appealed his denied to the Court of Appeals for Veterans Claims (CAVC or the Court). In June 2019, the Court issued a Joint Motion for Partial Remand (JMPR), vacating the Board's decision to the extent that it had denied compensable ratings prior to June 16, 2017 and ratings higher than 10 percent for the period from June 16, 2017, and remanded the issues to VA for further adjudication. In November 2019 and October 2020, the Board remanded these issues for additional development. In a September 2021 rating decision, the Veteran's right hand disability was rated as 40 percent disabling and his left hand disability was rated as 30 percent disabling, both effective April 30, 2021. However, since these increases did not constitute a full grant of the benefits sought, the higher evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). For reasons discussed further below, the Board finds that more development is necessary prior to final adjudication of the increased rating claims for the periods prior to April 30, 2021. Additionally, the Board has jurisdiction over a claim for a total disability evaluation based on individual unemployability (TDIU) as part and parcel of the Veteran's increased rating claims if raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Based on the record, this issue has been included on appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating of 60 percent for left hand tremor for the period beginning April 30, 2021 2. Entitlement to a rating of 70 percent for right hand tremor for the period beginning April 30, 2021 Prior to April 30, 2021, the Veteran's right and left-hand essential tremor condition was rated under 8199-8104 by analogy. Diagnostic Code 8104 pertains to paramyoclonus multiplex which is to be rated a tic; convulsive with severe cases rated at 60 percent. 38 C.F.R.§ 4.124a. A mild tic is rated at zero percent, a moderate tic is rated 10 percent, and a severe tic is rated at 30 percent. In the September 2021 rating decision, the Veteran's right hand disability was rated as 40 percent disabling and his left hand disability was rated as 30 percent disabling under Diagnostic Code 8513, both effective April 30, 2021. These ratings were assigned as it was noted that the Veteran's tremors had progressed to now include nerve involvement. Diagnostic Codes 8513, 8613, and 8713 provide ratings for paralysis, neuritis, and neuralgia for all radicular groups (upper, middle, and lower). Disability ratings of 20, 30, and 60 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of all minor (or non-dominant) radicular groups. A maximum 80 percent rating is warranted for complete paralysis of all minor radicular groups. Ratings of 20, 20, and 70 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of all major (or dominant) radicular groups with a maximum of 90 percent rating warranted for complete paralysis of all major radicular groups. See 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. See 38 U.S.C. § 7104; 38 C.F.R. § 4.2, 4.6. The was afforded a VA examination in April 2021, at which time he presented with a moderate constant pain and intermittent pain and mild numbness and paresthesias and dysesthesias. Upper extremity muscle strength testing showed elbow flexion and extension were 4 out of 5, wrist flexion and extension and grip were 3 out of 5 and pinch was 2 out of 5, bilaterally. There was no muscle atrophy but reflexes were hypoactive throughout the upper extremities. Sensation was normal and trophic changes were present with loss of hair, shiny and smooth appearance on the dorsum of both hands. The examiner noted that the Veteran had moderate incomplete paralysis of the radial and median nerves, bilaterally, as well as the right musculocutaneous nerve and mild incomplete paralysis of the middle and lower radicular groups, bilaterally. It was opined that the Veteran's condition has an impact on his ability to work, due to difficulty with fine motor tasks of hands and ADLs, specifying that the Veteran cannot button shirt and has difficulty eating, drinking, and dressing. Despite the April 2021 VA examiners findings of moderate and mild severity, by resolving reasonable doubt in the Veteran's favor, the Board finds that for the period beginning April 30, 2021, the hand tremor disabilities warrant a higher disability rating for severe incomplete paralysis under DC 8513. Of note, the VA examiner also indicated that the Veteran had difficulty with motor tasks of hands and activities of daily living including eating, drinking, and dressing, as well as with writing. Additionally, the VA examiner specified that the Veteran's tremor is "devastating" without medication and he is unbale to perform any tasks with his hands. She further stated that the Veteran's tremor and weakness is severe enough, even with medications, to interfere with occupational and personal tasks and that it would be difficult to impossible for the Veteran to hold a job at this time that required reliable use of the hands. It was noted that the Veteran is unable to grasp objects for more than a few seconds and writing is not possible with the tremor as the severity does not allow for the find motor control needed for tasks such as writing, tying shoes, and buttons. Further, the Veteran is dependent upon assistance for dressing and ADLs. After considering all the evidence, lay and medical, the Board finds that it is more favorable to the Veteran to associate the essential tremor of the hands with incomplete paralysis of all radicular groups, under DC 8513. Notably, 70 and 60 percent disability ratings for severe incomplete paralysis of the right and left upper extremities, respectively, contemplate pain, impaired function of the nerves, and numbness. While a 30 percent disability rating is warranted for severe tic would be based on those same symptoms, such would violate the rule against pyramiding. See 38 C.F.R. § 4.14. Here, rating for severe incomplete paralysis of the right and left upper extremities under DC 8513 allows for the most advantageous rating code under which to rate the Veteran's symptoms. The Board finds that a rating under DC 8513, which addresses incomplete or complete paralysis in all radicular groups, is most appropriate. See 38 C.F.R. § 4.124a. As noted above, the April 2021 VA examination report shows moderate incomplete paralysis of the radial and median nerves bilaterally, as well as the right musculocutaneous nerve and mild incomplete paralysis of the middle and lower radicular groups, bilaterally. However, separate ratings are not alternatively available under the Diagnostic Codes addressing other nerves in the upper extremities. Essentially, because the 70 and 60 percent ratings under DC 8513 contemplates incomplete paralysis of the radicular groups affecting all shoulder, elbow, hand, and wrist movements, the Board finds that the assignment of separate ratings under different Diagnostic Codes would constitute pyramiding. See 38 C.F.R. § 4.14, 4.124a (DCs 8510, 8511, and 8512). On review of all the evidence, lay and medical, the Board finds that from April 30, 2021, the Veteran's service-connected essential tremor of the hands more nearly approximates severe incomplete paralysis of the radicular groups. The evidence of record demonstrates that the Veteran is right handed; hence, the left side is the minor side. Under 38 C.F.R. § 4.124a, DC 8513, 70 and 60 percent rating is warranted for severe incomplete paralysis of all radicular groups for the major and minor sides, respectively. There is no indication of a more severe level of disability or other associated neurologic disability. Complete paralysis of either upper extremity has not been demonstrated by the evidence of record. Accordingly, 70 and 60 percent ratings under DC 8513 are more appropriate for the Veteran's right hand and left hand tremor, respectively, as such more nearly approximates the Veteran's symptoms. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for a left hand tremor for the period prior to June 16, 2017 is remanded. 2. Entitlement to an initial rating in excess of 10 percent for the period since June 16, 2017, but prior to April 30, 2021 for left hand tremor is remanded. 3. Entitlement to an initial compensable rating for a right hand tremor for the period prior to June 16, 2017 is remanded. 4. Entitlement to an initial rating in excess of 10 percent for the period since June 16, 2017, but prior to April 30, 2021, for right hand tremor is remanded. In the October 2020 remand, the examiner was directed to express a retrospective opinion on the effects of his right and left hand tremor disabilities if the Veteran was not taking medications for these disabilities for the period prior to June 16, 2017. The examiner was asked to review the previous January 2014 VA examination and February 2014 private treatment reports and attempt to provide an opinion that addresses the effects of his right and left hand tremor disabilities if the Veteran was not taking medications for these disabilities for the period prior to June 16, 2017. The examiner merely stated that she cannot speculate on the condition of the Veteran in 2017 and indicated that the Veteran would be much worse at the time of the 2021 examination without medications. It is unclear if the VA examiner reviewed the previous January 2014 VA examination and February 2014 private treatment reports in attempt to provide the requested opinion. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Entitlement to a TDIU is remanded. As noted, the issue of TDIU has been raised by the record. A request for a TDIU, reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. Rice, 22 Vet. App. at 453-54. A total disability will be considered to exist 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As stated above, the VA examiner noted that the Veteran's tremor and weakness is severe enough, even with medications, to interfere with occupational and personal tasks and that it would be difficult to impossible for the Veteran to hold a job at this time that required reliable use of the hands. However, the AOJ has not yet conducted any development to obtain information about the details or changes in his previous employment, his earnings history, his qualifications for other potential employment opportunities, or about his education and prior work experience. In light of Rice and the remand of the claims for higher ratings, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the increased rating claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the TDIU claim must also be deferred. The matters are REMANDED for the following actions: 1. Return the claims file to the clinician who performed the April 2021 VA examination, or a suitable substitute, if that clinician is unavailable. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination reports should reflect review of these items. The examiner is asked to express a retrospective opinion on the effects of the Veteran's right and left hand tremor disabilities if the Veteran was not taking medications for these disabilities for the period prior to June 16, 2017 and from June 16, 2017 to April 29, 2021. The examiner should review the previous January 2014 VA examination and February 2014 private treatment reports as well as the June 2017 VA examination report and attempt to provide an opinion that addresses the effects of his right and left hand tremor disabilities if the Veteran was not taking medications for these disabilities for the period prior to June 16, 2017 and from June 16, 2017 to April 29, 2021. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of the TDIU claim. If the Veteran provides a completed VA Form 21-8940, the Agency of Original Jurisdiction should complete any additional development prompted by the information on the completed form, if deemed appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.