Citation Nr: 21007135 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 13-03 522A DATE: February 8, 2021 ORDER Entitlement to an evaluation of 60 percent, but not higher, for left upper extremity cerebellar tremors, prior to December 22, 2015, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 70 percent, but not higher, for right upper extremity cerebellar tremors, prior to December 22, 2015, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to special monthly compensation based on the need for regular aid and attendance, prior to December 22, 2015, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to specially adapted housing is denied. Entitlement to a special home adaption grant is denied. FINDINGS OF FACT 1. Prior to December 22, 2015, the Veteran’s left upper extremity cerebellar tremors were characterized by severe incomplete paralysis. 2. Prior to December 22, 2015, the Veteran’s right upper extremity cerebellar tremors were characterized by severe incomplete paralysis. 3. The Veteran was so helpless prior to December 22, 2015, as to need regular aid and attendance by reason of his service-connected disabilities. 4. The Veteran’s service-connected disabilities do not result in a loss or loss of use of a lower extremity; loss or loss of use of both upper extremities; permanent impairment of vision of both eyes; full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; amyotrophic lateral sclerosis; or ankylosis of a knee or hip. 5. The Veteran’s service-connected disabilities do not result in a loss or loss of use of both hands or full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck, and he is not service connected for amyotrophic lateral sclerosis, blindness, or an inhalation injury. CONCLUSIONS OF LAW 1. The criteria an evaluation of 60 percent, but not higher, prior to December 22, 2015, for left upper extremity cerebellar tremors, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8513. 2. The criteria for an evaluation of 70 percent, but not higher, prior to December 22, 2015, for right upper extremity cerebellar tremors, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8513. 3. The criteria for special monthly compensation based on the need for regular aid and attendance prior to December 22, 2015, have been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.350, 3.352(a). 4. The criteria for specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809. 5. The criteria for a special home adaptation grant have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1957 to March 1957. In an August 2016 decision, the Board denied the above listed issue. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). While that case was pending at the Court, the Veteran’s attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board’s decision as it pertained to these issues and remanded the Veteran’s claim for readjudication. In a May 2017 Order, the Court granted the motion, vacated the Board’s August 2016 decision, and remanded this case to the Board for readjudication. The above issues were again denied by the Board in a February 2019 decision. The Veteran subsequently appealed the decision to the Court. While that case was pending at the Court, the Veteran’s attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board’s decision as it pertained to these issues and remanded the Veteran’s claim for readjudication. Thereafter, in an August 2020 Order, the Court granted the motion, vacated the Board’s February 2019 decision, and remanded this case to the Board for readjudication. Increased Rating 1. Entitlement to an evaluation in excess of 30 percent prior to December 22, 2015, for left upper extremity cerebellar tremors 2. Entitlement to an evaluation in excess of 40 percent prior to December 22, 2015, for right upper extremity cerebellar tremors 3. Entitlement to special monthly compensation based on the need for regular aid and attendance prior to December 22, 2015 Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 8513 provides ratings for paralysis of all radicular groups of nerves. Diagnostic Code 8513 provides that moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 70 percent disabling on the major side and 60 percent on the minor side. Complete paralysis of all radicular groups is rated 90 percent disabling on the major side and 80 percent on the minor side. Diagnostic Code 8613 provides a rating for neuritis of all radicular groups of nerves. Diagnostic Code 8713 provides a rating for neuralgia of all radicular groups of nerves. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The words "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA 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." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" 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. Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he requires the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). “Bedridden” will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater-or-lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant’s condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Under the present decision, both prior to December 22, 2015 and currently, service connection has been in effect for major depression, rated 100 percent; left upper extremity cerebellar tremors, rated 60 percent; right upper extremity cerebellar tremors, rated 70 percent; irritable bowel syndrome, rated 30 percent; hemorrhoids, rated 10 percent, and erectile dysfunction, rated noncompensably. The combined rating was 100 percent. At August 2011 private treatment it was noted that the Veteran’s tremors had worsened since the last visit. There was subtle cogwheeling on the right. Dr. I and Dr. N, private treating physicians, wrote in July 2011 and August 2011 respectively, that the Veteran could not cut pills because of tremors. The Veteran had a VA examination in October 2011 at which it was noted that he had a significant bilateral upper extremity tremor that worsened with anxiety and under observation. On examination there was no upper extremity pain, numbness, loss of muscle strength, or loss of reflexes due to the tremors. The examiner noted normal upper extremity nerve functioning and felt that the tremor was essential. There was no evidence of Parkinsonism. The Veteran had an aid and attendance VA examination in October 2011 at which it was noted that the Veteran performed activities of daily living, went out for shopping and medical visits, and could walk for two blocks. There were not body parts or system impairments that affected the ability of the Veteran to protect himself from the daily environment. The Veteran wrote in June 2012 that the shaking in his hands prevented him from using a pill splitter. He also had difficulty with opening and closing objects. He needed assistance with any function that requires a steady hand, and he was losing the use of his hands. Dr. A, a treating physician, wrote in June 2012 that the Veteran had a severe resting tremor of the arms and hands that interfered with activities of daily living. A private treating neurologist, Dr. H, wrote in October 2012 that the Veteran’s tremor had gotten worse and impacted activities of daily living such as using utensils and dispensing medications. In February 2013 the Veteran wrote that he required assistance from his wife to tie his shoes and to open objects such as jars. He could no longer write anything more than his name. At June 2013 neurology treatment the Veteran had tremors in both hands and arms. The Veteran described it as moderate in severity and worsening. The Veteran described the tremor as worse at December 2013 private treatment, and the symptoms occurred constantly. On examination there was a tremor at rest and with a holding position. At June 2014 VA treatment the Veteran described the tremor as severe and worsening. A February 2015 EMG was consistent with sensory motor polyneuropathy with mixed features of moderate severity. At December 2014 treatment the Veteran described the tremor as rhythmic and worse with holding a position. It was noted at September 2014 VA treatment that the Veteran could not complete a written test due to tremors. In March 2015, Dr. H competed a Disability Benefits Questionnaire due to the Veteran’s inability to travel for a VA examination. Dr. H diagnosed sensory motor radiculopathy and radiculopathy of the lower back, noting abnormal EMGs of the left upper and lower extremities in February 2015. He described the neuropathy as of moderate severity, and indicated that it was likely affecting the Veteran’s tremor. Dr. H reported that the Veteran showed no muscle weakness, though tests indicated that his right and left wrist flexion, extension, and grip were 4 out of five, or less than normal. The Veteran described his tremors as worse with a holding position at June 2015 private treatment. He felt that overall, the tremors were severe and worsening, and the symptoms were constant. The Veteran said at November 2015 treatment that “he had difficulty eating food due the tremors.” The Veteran had a VA examination in December 2015, and the examiner felt that the Veteran was independent in activities of daily living. There was a mild tremor noted in the upper extremities. However, the Veteran wrote in December 2015 that he “had trouble getting food into his mouth due to excessive shaking,” and his wife stood by while he bathed due to possible falls. The Veteran’s representative wrote in December 2015 that the Veteran’s wife prepared all of his meals and that the Veteran “had trouble getting food into his mouth due to excessive shaking.” His wife stood by while he bathed due to possible falls, and he needed help taking medication due to shaking hands. Another physician opined in December 2015 that the Veteran could not feed himself or prepare meals due to severe hand tremors. The Veteran’s wife had to make sure he did not slip in the bathroom. The upper extremities had moderate to severe intention tremors and slightly decreased grip strength. The Board finds that the Veteran is entitled to a 60 percent rating for his left upper extremity tremor, and to a 70 percent rating for his right upper extremity tremor, prior to December 22, 2015, based on there being severe incomplete paralysis. See 38 C.F.R. § 4.124a, Diagnostic Code 8513. The treatment records show that the tremor was described by treating providers as moderate, moderately severe, and severe. The Veteran consistently reported that the tremors were severe, and the record shows that he had increasing difficulty with activities of daily living. Giving the benefit of the doubt to the Veteran, the Board finds that the tremors were severe prior to December 22, 2015. The Veteran does not qualify for an 80 percent rating for the left upper extremity tremor and a 90 percent rating for the right upper extremity tremor prior to December 22, 2015 because the record does not show that there was complete paralysis. See id. In evaluating the conflicting evidence of record related to special monthly compensation based on aid and attendance, less probative value is given to the December 2015 opinion that the Veteran was independent in activities of daily living. This is contradicted by ample previous statements from treating providers and the Veteran himself that he could not use a pill cutter, had difficulty “manipulating other objects, writing, and eating.” The Veteran was also noted to need “assistance with preparing meals, eating, and with his medication,” and he needed supervision while bathing. Resolving any doubt in the appellant’s favor, the Board concludes the evidence supports entitlement to special monthly compensation based on a need for regular aid and attendance of another person prior to December 22, 2015. 38 U.S.C. § 5107(b). 4. Entitlement to specially adapted housing 5. Entitlement to a special home adaption grant Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is additionally available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if the veteran has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of his or her vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature. Additionally, a special home adaptation grant is available for a veteran that has a service-connected permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease (COPD)). 38 C.F.R. § 3.809a. “Loss of use” is not specifically defined under 38 C.F.R. § 3.809 or 3.809a. Regulations pertaining to special monthly compensation for loss of use of a hand or foot state that loss of use is held to exist when no effective function remains other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance. The determination should be made on the basis of the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel oneself forward. See 38 C.F.R. §§ 3.350(a)(2), 4.63. The Court of Appeals for Veterans Claims has found that a “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). In April 2015, Dr. C, a treating physician, noted that the Veteran had moderately severe neuropathy of the left lower extremity from L5-S1 radiculopathy that can result in weakness, dyscoordination, and unsteadiness. Dr. C opined that the Veteran would benefit from having a ramp and railing at home to prevent falls due to the leg neuropathy. This opinion is not probative because it is based on consideration left lower extremity radiculopathy, which is not a service-connected disability. Some of the criteria applicable to entitlement to specially adapted housing or a special home adaptation grant are not applicable in this case. Specifically, the Veteran is not service connected for amyotrophic lateral sclerosis, a disability resulting in impairment of the lower extremities, for a disability that results in blindness in both eyes, for subdermal burns, or for an inhalation injury. See 38 C.F.R. §§ 3.809, 3.809a. While the record shows reduced functioning of the upper extremities, the Veteran maintains functioning above that required for there to be entitlement to specially adapted housing or a special home adaptation grant. There is not loss of use of a limb or hand due to service-connected disabilities, as there is not “deprivation of the ability to avail oneself” of an extremity. See Jensen, 29 Vet. App. at 78-79. The Veteran therefore does not qualify for a special home adaption grant based on anatomical loss or loss of use of both hands. See 38 C.F.R. § 3.809A(b)(1)(i). Furthermore, the Veteran does not qualify for specially adapted housing based on loss of use of both upper extremities such as to preclude use of the arms at or above the elbow. See 38 C.F.R. § 3.809(b)(5). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.