Citation Nr: 21005867 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-17 441 DATE: February 2, 2021 ORDER Entitlement to service connection for pain, claimed as radiculopathy, right shoulder, is granted. Entitlement to service connection for pain, claimed as radiculopathy, left shoulder, is granted. Entitlement to an initial disability rating of 20 percent, but not higher, for dystaxia, left upper extremity, is granted. REMANDED Entitlement to special monthly compensation (SMC) based upon statutory housebound status is remanded. FINDINGS OF FACT 1. The Veteran’s right shoulder pain causes functional impairment of earning capacity. 2. The Veteran’s service-connected cervical strain causes his right shoulder pain. 3. The Veteran’s left shoulder pain causes functional impairment of earning capacity. 4. The Veteran’s service-connected cervical strain causes his left shoulder pain. 5. From March 1, 2009, the Veteran has had a level of impairment that is consistent with moderate incomplete paralysis of the radial nerve of the left upper extremity; this disability has not been manifested at any time during the appeal by symptoms that more nearly approximate severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for pain, claimed as right shoulder radiculopathy, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.310. 2. The criteria for entitlement to service connection for pain, claimed as left shoulder radiculopathy, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.310. 3. From March 1, 2009, the criteria for a 20 percent rating for dystaxia, left upper extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8514. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1988 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of May 18, 2009 and May 29, 2009 of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Board denied the claims of bilateral shoulder pain and the increased rating for dystaxia, left upper extremity, in January 2018. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court granted a Joint Motion for Remand (JMR). Pursuant to the JMR, the Veteran vacated the Board’s decision, and it remanded the matter to the Board for further proceedings consistent with the JMR. The Board, after the JMR, considered the claims of bilateral shoulder pain and the increased rating for dystaxia, left upper extremity, in October 2019. The Board, pursuant to the JMR, added the SMC issue. It remanded the four issues for additional development, and the matter has now returned to the Board. Issue 1: Entitlement to service connection for pain, claimed as radiculopathy, right shoulder Issue 2: Entitlement to service connection for pain, claimed as radiculopathy, left shoulder Secondary Service Connection Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Merits To frame the issue, the JMR is instructive. It states, as relevant here, that: The parties also agree that the Board erred when it failed to provide an adequate statement of reasons or bases with respect to Appellant’s claim for service connection for a bilateral shoulder disability. In Saunders v. Wilkie, the Federal Circuit determined that “pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). The Court went on to explain that “[w]e do not hold that a veteran could demonstrate service connection simply by asserting subjective pain—to establish a disability, the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. Here, the Board expressly relied on Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), and stated that it was basing its denial on the fact that Appellant’s symptoms of pain, swelling, and tenderness, “alone without a diagnosed disorder are not a disorder for VA purposes.” [R. at 16]. The basis for this finding is, therefore, contrary to the Federal Circuit’s decision in Saunders. See Saunders, 886 F.3d at 1361. Moreover, in this case there is lay evidence in the record of possible functional impairment. See [R. at 1515-16] (June 2012 Letter); [R. at 2037-38] (June 2009 NOD). Accordingly, remand is appropriate for the Board to discuss this evidence and Saunders. In October 2019, the Board, based on the JMR, remanded Issues 1-2, for a VA examination to determine "whether the Veteran has pain that amounts to functional impairment under the correct legal test for disability." The AOJ requested two VA examinations on August 21, 2020 – one for the bilateral shoulder claims, the other for the increased rating claim in Issue 3 below. The Veteran, as seen in a September 16, 2020 entry in the claims file titled "C&P Exam," cancelled the examinations, stating that they were "not needed" and that "he didn't want to be scheduled for any appointments." Notwithstanding the forgoing, the Board finds that the Veteran credibly reported functional impairment, as seen in the two documents cited in the JMR excerpt above. As such, the Board finds the Veteran's shoulder pain, as described, meets the current disability prong of a secondary service connection claim. VA service connected the Veteran's cervical spine strain in May 2009. It rated the strain as 10 percent disabling, effective March 1, 2009. This satisfies the second prong of a secondary service connection claim. The appeal turns on the third prong of a secondary service connection claim – medical nexus. In March 2009, VA examined the Veteran for his shoulder claim. The examiner opined that "there is no bilateral radiculopathy affecting shoulders, this is simple cervical muscle strain being felt in the bilateral latissimus dorsi." The Board construes this opinion to mean that the service-connected muscle strain caused the bilateral shoulder pain. This satisfies the third prong of a secondary service connection claim. Based on the foregoing, the Veteran has satisfied all three prongs of a secondary service connection claim. Therefore, the Board will grant the appeal of Issues 1-2. Issue 3: Entitlement to a rating greater than 10 percent for dystaxia, left upper extremity Increased Ratings 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. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Nerve Impairment The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. Here, VA service connected the Veteran’s dystaxia, left upper extremity, in May 2009. It rated it as 10 percent disabling, effective March 1, 2009, under Diagnostic Code (DC) 8515, which provides ratings based on paralysis of the median nerve. For mild incomplete paralysis, a 10 percent rating is warranted for either the major or minor extremity. For moderate incomplete paralysis, a 20 percent rating is warranted for the minor extremity, and a 30 percent rating is warranted for the major extremity. For severe incomplete paralysis, a 40 percent rating is warranted for the minor extremity, and a 50 percent rating is warranted for the major extremity. For complete paralysis, a 60 percent rating is warranted for the minor extremity, and a 70 percent rating is warranted for the major extremity. 38 C.F.R. § 4.124a, DC 8515. In rating peripheral nerve injuries and their residuals, attention should be given to the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The VA Schedule for Rating Disabilities does not define the words "mild," "moderate," and "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis," with these and other peripheral nerve injuries, 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the U.S. Court of Appeals for Veterans Claims noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms." One possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "mild," as relevant here, as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Merits As a threshold matter, the JMR does not expressly address the dystaxia issue. At best, the parties included it because the Board, in 2018, limited this issue and other related increased rating claims to the period prior to April 15, 2016 – the date the AOJ granted the Veteran a 100 percent schedular rating. The parties agreed that this limitation was wrong, but they did not find the Board's analysis of the dystaxia issue was wrong. Notwithstanding the foregoing, the Board, in 2019, addressed the issue as follows: Regarding the Veteran’s left upper extremity dystaxia, in February 2018, the Veteran was afforded a VA examination to determine the severity of his left upper extremity dystaxia. The examiner noted mild incomplete paralysis of the left upper radial nerve. The examiner stated although the radial nerve was selected for left upper extremity symptoms, as the weakness is more generalized, this examiner retained the right to make amendments to nerve(s) affected if diagnostic evidence becomes available. He further stated that a request to have a nerve conduction test completed was submitted; however, “there was no response within the contractual timeframe.” The Board finds that a remand is necessary to schedule the Veteran a new VA examination with appropriate testing so as to determine the nature and etiology of his left upper extremity symptoms. The AOJ requested two VA examinations on August 21, 2020 – one for the bilateral shoulder claims, the other for the increased rating claim in Issue 3 below. The Veteran, as seen in a September 16, 2020 entry in the claims file titled "C&P Exam," cancelled the examinations, stating that they were "not needed" and that "he didn't want to be scheduled for any appointments." In the absence of the additional information this examination would have provided, the Board must evaluate the claim based on the other evidence of record. VA examined the Veteran for compensation purposes four times during the pendency of this appeal – March 2009, May 2009, April 2016, and February 2018. The thoroughness of these examinations varies. In March 2009, the Veteran reported pain, numbness, and weakness in his left upper and lower extremities. His left upper extremity was reported as his non-dominant extremity. The Veteran had slightly decreased motor strength and reflexes with normal sensation in his left upper extremity. The Veteran had some “very slight left finger-to-nose dystaxia.” The examiner did not find evidence of upper extremity radiculopathy. Similarly, the Veteran had slightly decreased motor strength and reflexes with normal sensation in his left lower extremity. He also had “some left heel-to-shin dystaxia” that caused “some” difficulty walking. There was no evidence of muscle atrophy or radiculopathy. In May 2009, the Veteran had normal motor and sensory findings in his left upper and lower extremities. Based on these examinations, VA, as explained above, rated the Veteran's dystaxia as impairment of the median nerve, and it assigned a 10 percent rating. In April 2016, the Veteran reported that "his left hand shakes uncontrollably which affects activities of daily living." The examiner found the Veteran experienced neither constant nor intermittent pain in his left upper extremity, nor did he experience paresthesias, dysesthesias, or numbness in this extremity. Examination revealed a normal sensory test, and from section 10 in the examination report, it appears there was no impairment of the upper extremity nerves and radicular groups. However, in section 17 of the examination report, the examiner found the dystaxia was "active." In February 2018, the Veteran reported that he had some weakness in the left hand and wrist. The examiner found the Veteran experienced neither constant nor intermittent pain in his left upper extremity, nor did he experience paresthesias, dysesthesias, or numbness in this extremity. Strength testing was normal (5/5) except that pinch (thumb to index finger) was mildly limited (4/5). Reflex and sensory examination was normal. As noted above, the examiner reported mild incomplete paralysis of the left upper radial nerve. However, he, in section 17 of the examination report, stated the upper extremity peripheral neuropathy was "moderate." He then concluded his report with this: Left upper extremity weakness status post cerebrovascular accident - The Veteran has a well-established history of cerebrovascular accident dated April 3, 2008: Rating Decision Dated 18 May 2009 “We have granted service connection for cerebrovascular accident (claimed as stroke syndrome) because the service treatment record dated April 3, 2008, shows you were suffered a cerebrovascular accident (stroke) while on active duty.” In 17 March 2009, an examiner reported his “numbness of left foot and hand with weakness.” He was also noted to have some gait disturbance, “He claimed to have some residual weakness in the left upper and lower extremities with mild speech difficulty and fatigue. He also had vertigo with the symptoms. The patient states he recovered fairly well but still has some slight clumsiness in the left hand and foot. His gait is fair if he uses a faster walk for balance.” Today, the Veteran demonstrates a very mild hemiplegic gait of the left side, with some continued weakness, numbness, and pain. He demonstrates some mild weakness in his right upper extremity. His deficits are mild today, just as they were in the 2009 examination, and do not evidence significant disability. Regardless, they do evidence a continuity of stroke sequelae. Based on the disparate information reported above, the Board finds the February 2018 examiner is the only examiner to have identified a specific impaired nerve, i.e., the radial nerve. The AOJ, for reasons it did not explain in May 2009, found the median nerve was impaired, and it rated the disability based on Diagnostic Code 8515, as cited above. The Board, considering the February 2018 examination report, concludes the disability is more appropriately rated under Diagnostic Code 8514, which rates impairment of the radial nerve. Under Diagnostic Code 8514, for mild incomplete paralysis, a 20 percent rating is warranted for both the major and minor extremity. For moderate incomplete paralysis, a 20 percent rating is warranted for the minor extremity, and 30 percent rating is warranted for the major extremity. For severe incomplete paralysis, a 40 percent rating is warranted for the minor extremity, and a 50 percent rating is warranted for the major extremity. For complete paralysis, a 60 percent rating is warranted for the minor extremity, and a 70 percent rating is warranted for the major extremity. 38 C.F.R. § 4.124a, DC 8514. From March 1, 2009, the above evidence principally reflects that the Veteran's dystaxia, left upper extremity, has been manifested by mild pain and slightly diminished sensation. The Board, however, cannot ignore the February 2018 examiner's report of moderate peripheral neuropathy and that the Veteran's symptoms have remained constant since discharge in 2009. It could order additional clarification to reconcile these findings, but the Veteran has made clear that he will not participate in the process and it would otherwise delay a claim that has been pending nearly 12 years. As such, considering the definitions above, the Board concludes that the Veteran's reported neurological symptoms and the clinical findings of impaired sensation and reflexes have most closely approximated the criteria for a 20 percent rating for dystaxia, left upper extremity, under Diagnostic Code 8514. This finding of moderate incomplete paralysis of the minor extremity reflects the Board's reasoned opinion that the Veteran's lay and medical reports of pain, slightly impaired grip, normal muscle strength, limited decreased sensation, and no evidence of atrophy are analogous to symptoms of average or medium quality, quantity, or extent, but not extremely intense. From March 1, 2009, the above evidence, however, also reflects that a rating higher than 20 percent is not warranted. To assign the next highest rating – 40 percent –would require evidence showing "severe" symptoms. Indeed, a finding of severe symptomatology would require more severe, frequent symptoms than have been present and would not be proportional to the Veteran's sensory and reflex deficits. REASONS FOR REMAND The JMR stated the following about the SMC issue: Moreover, given the above and the grant of Total Disability due to Individual Unemployability (TDIU) for the period beginning March 10, 2016, the parties also agree that the Board should determine if any single service-connected disability could be rated 100% for a separate total rating for TDIU and Special Monthly Compensation (SMC) purposes. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (finding that VA should infer from a claim for increased ratings a request for SMC if applicable). The Board, in October 2019, remanded the SMC issue for the AOJ to notify the Veteran how to prosecute a claim for SMC. The AOJ provided this notice in October 2020, and the Veteran did not respond. However, before deciding the issue, the Board finds additional development is needed. As background, in Bradley v. Peake, the U.S. Court of Appeals for Veterans Claims held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). Additionally, an award of SMC at the housebound rate may be awarded if the Veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s)(1). Here, the AOJ granted the Veteran a TDIU in June 2016, effective March 10, 2016, because it found the Veteran "unable to secure or follow a substantially gainful occupation as a result of [his] service-connected disabilities." The Board, in October 2019, granted the Veteran an earlier effective date for his TDIU. The AOJ, in implementing the Board's grant in May 2020, established March 1, 2009 as the effective date, and it repeated the above quote. Although the AOJ granted the TDIU based on multiple disabilities, not one, this is not dispositive of the SMC issue. In Buie v. Shinseki, 24 Vet. App. 242 (2011), the U.S. Court of Appeals for Veterans Claims explained that the proper question is whether a TDIU may be predicated on a single service connected disability, not whether it was awarded based on a single service connected disability. Thus, the Board must engage in this theoretical analysis from March 1, 2009. However, given the Board's favorable actions above, the Board cannot adjudicate the SMC issue until the AOJ implements the Board's grants. Therefore, remand is warranted. The matters are REMANDED for the following action: 1. Implement the Board's grants above. (Continued on the next page)   2. Determine what, if any, impact they have upon the SMC issue and conduct any development needed. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.