Citation Nr: 21012702 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 08-25 014 DATE: March 5, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for service-connected tardive dyskinesia with involuntary tongue movement and speech impairment is denied. FINDING OF FACT The Veteran’s tardive dyskinesia with involuntary tongue movement and speech impairment is not manifested by symptoms approximating loss of one-half or more of the tongue, or by inability to communicate by speech, including with consideration of the ameliorative effects of medication. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 30 percent for service-connected tardive dyskinesia with involuntary tongue movement and speech impairment have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7202; 4.124a, Diagnostic Codes 8099-8004. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1972 to March 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 and April 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue on appeal in December 2018 following a July 2018 order of the United States Cort of Appeals for Veterans Claims (Court) implementing a July 2018 Joint Motion for Partial Remand (JMPR), vacating and remanding a July 2017 Board decision that denied entitlement to a disability rating in excess of 30 percent for tardive dyskinesia with involuntary tongue movement and speech impairment. A review of the record shows substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that after the RO issued a December 2020 Supplemental Statement of the Case, additional evidence was associated with the claims file. However, a waiver is not necessary, nor is a remand for initial consideration of the evidence by the RO, as the newly associated evidence is not relevant to the claim decided in the instant decision. See 38 C.F.R. § 20.1305(c). Therefore, the Board may proceed with adjudicating the claim on appeal. In July 2017, the Board remanded the Veteran’s claims to entitlement to a disability rating in excess of 30 percent for a disorder manifested by balance and instability due to tardive dyskinesia on an extraschedular basis and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) that are currently being adjudicated by the RO, and are not a part of the instant decision. Entitlement to an initial disability rating in excess of 30 percent for service-connected tardive dyskinesia with involuntary tongue movement and speech impairment. The Veteran seeks an initial disability rating in excess of 30 percent for service-connected tardive dyskinesia with involuntary tongue movement and speech impairment. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule.  If there is a question as to which evaluation should be applied to the 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.  The primary focus in a claim for increased rating is the present level of disability.  Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  The Veteran’s tardive dyskinesia was initially rated by analogy under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8099-8004, for paralysis agitans, prior to September 19, 2016. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. The additional code is shown after the hyphen. Under DC 8004, a minimum 30 percent disability rating is warranted, but no higher rating is available. From September 19, 2016, the Veteran’s tardive dyskinesia is rated under 38 C.F.R. § 4.114, DC 7202, for loss of whole or part of the tongue. Under DC 7202, a 30 percent rating is warranted when there is marked speech impairment; a 60 percent is warranted when there is loss of one-half or more of the tongue; and a 100 percent rating requires inability to communicate by speech. 38 C.F.R. § 4.114, DC 7202. The Board finds that a rating under DC 7202 provides the higher potential benefit. Therefore, the Board considered whether a higher rating is warranted during the entirety appeal period under DC 7202. The Board finds that a disability rating in excess of 30 percent for the Veteran’s service-connected tardive dyskinesia is not warranted for any time during the appeal period. In that regard, VA treatment records note the Veteran’s symptoms included slurred speech, mouth and tongue movements, smacking, and movement abnormalities, such as repetitive straightening of the spine causing him to sit up. See September 2010, November 2010, and June 2012 VA treatment records. However, VA treatment records do not demonstrate loss of one-half or more of the Veteran’s tongue or inability to communicate by speech to warrant a higher disability rating. The Veteran was afforded an initial VA examination in March 2012. The Veteran reported his symptoms included lip/tongue movements, smacking, and other body movements. See March 2012 VA examination. At an April 2015 VA examination, the Veteran reported additional symptoms including worsened leg weakness and speech. See April 2015 VA examination. The VA examiner noted the Veteran had abnormal speech and observed intermittent movements of the lips and tongue. Id. However, the VA examiner also noted the Veteran’s speech was coherent at the time with no speech slurring or utterances. Id. In September 2016, the Veteran reported developing symptoms due to taking neuroleptic medication for his separately service-connected depression. See September 2016 VA examination. Specifically, the Veteran reported symptoms related to his tardive dyskinesia included abnormal and uncontrollable movement ot the legs, facial tics and twitches, and garbled speech. Id. The VA examiner noted that when the Veteran stopped taking the medication, his symptoms of tardive dyskinesia remained. Id. The VA examiner noted the Veteran was prescribed medication that helped reduce his symptoms, but speech remained intermittently hard for others to understand. Id. The VA examiner endorsed the Veteran’s symptoms included restless leg, facial twitches and tics, abnormal speech, lip smacking, mouth pursing, tongue movements, repetitive mouth wiping, tremor of the tongue, and weakness. Id. In December 2017, the Veteran reported that he had facial tics and speech problems that were about the same even when he was on medication. See December 2017 VA examination. The VA examiner noted the Veteran’s speech was abnormal but legible. Id. The VA examiner also observed intermittent repetitive lip smacking, and tongue movements. Id. As noted, in December 2018, the Board remanded the Veteran’s claim on appeal pursuant to a July 2018 order of the Court that granted a July 2018 JMPR. In the July 2018 JMPR, the parties agreed that the March 2012, April 2015, and September 2016 VA examinations failed to address the extent of the Veteran’s symptoms would fluctuate without the ameliorative effects of medication. As such, the Board remanded for a new VA examination and medical opinion. In November 2020, the Veteran reported symptoms including involuntary leg movement, facial tics with eye twitches, tongue licking and lip smacking, abnormal speech, persistent imbalance and unsteady gait, increased leg weakness, and garbled speech. See November 2020 VA examination. He reported his medication partially resolved these symptoms; however, he had to stop taking them due to side effects. Id. The Veteran reported he was not currently taking any medication for his symptoms related to his tardive dyskinesia. Id. The VA examiner stated, in regard to the ameliorative effects of medication, that the Veteran reported neuroleptic medications were stopped due to side effects of the medication and other medication prescribed, Topiramate, partially resolved his symptoms. Id. However, these medications had to be stopped as well due to side effects. Id. The VA examiner noted the Veteran has not been prescribed medication, nor been treated, for his tardive dyskinesia beyond 2012. Id. The VA examiner endorsed the Veteran’s symptoms include involuntary tongue movement and speech impairment with persistent imbalance and unsteady gait, involuntary leg movement, facial tics, eye twitches, and abnormal speech. Id. The VA examiner concluded that due to adverse side effects of the medication used to treat the Veteran’s tardive dyskinesia, the symptoms remained problematic for the Veteran and affected his activities of daily living. Id. To the extent the Veteran asserts that a higher rating is warranted, the Board notes the Veteran is credible and competent to report subjective symptoms of his service-connected tardive dyskinesia such as described above. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran is not considered competent to assess the relative severity of his tardive dyskinesia, as doing so involves medical testing and medical knowledge the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Consequently, the Board gives more probative weight to the competent medical evidence which includes the November 2020 VA examination and medical opinion that is against the Veteran’s claim for a higher rating than to the Veteran’s lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In sum, the Board finds the evidence of record does not demonstrate the Veteran has loss of use of one-half or more of the whole or part of his tongue, nor that the Veteran has an inability to communicate by speech. In regard to the ameliorative effects of medication, the Board must not consider the ameliorative effects of medication unless those effects are explicitly contemplated by the relevant rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). In this case, DC 7202 does not mention the effects of medication, and therefore the ameliorative effects of the Veteran’s medications are not for consideration. As noted, despite the use of medication, the Veteran’s symptoms remained problematic and include involuntary tongue movement and speech impairment with persistent imbalance and unsteady gait, involuntary leg movement, facial tics, tongue licking and lip smacking, eye twitches, and abnormal speech during the entire period on appeal. The Veteran, nor his representative, have provided any evidence demonstrating one-half or more loss of whole or part of the Veteran’s tongue. The Board acknowledges the Veteran has difficulty with his speech; however, the evidence does not demonstrate, nor does the Veteran assert, that he has an inability to communicate by speech. Therefore, the Board finds the RO appropriately assigned a 30 percent disability rating for marked speech impairment for the Veteran’s service-connected tardive dyskinesia with involuntary tongue movement and speech impairment under 38 C.F.R. § 4.114, DC 7202. As such, the Board finds that a rating in excess of 30 percent for service-connected tardive dyskinesia is not warranted for any time during the appeal period. In denying a higher rating, the Board finds that the benefit of the doubt doctrine is inapplicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the entire period on appeal. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.