Citation Nr: 21012820 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-46 310 DATE: March 5, 2021 ORDER Entitlement to an initial rating of 30 percent rating, but no higher, for left upper extremity peripheral neuropathy (previously identified as left arm weakness) is granted, effective November 4, 2014. The reduction from a 30 percent rating to a 20 percent rating for right upper extremity peripheral neuropathy was not proper; the 30 percent rating is restored, effective December 15, 2020. Entitlement to an initial rating of 40 percent, but no higher, for right upper extremity peripheral neuropathy is granted, effective September 6, 2019. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to January 1, 2013, is denied. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran’s left upper extremity has manifested no more than moderate incomplete paralysis. 2. The reduction of the Veteran’s right upper extremity peripheral neuropathy from 30 percent to 20 percent, effective December 15, 2020, was improper. 3. Throughout the appellate period, the Veteran’s right upper extremity has not manifested severe incomplete paralysis or complete paralysis. 4. The Veteran’s service-connected disabilities did not preclude him from securing and following substantially gainful employment prior to January 1, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but no higher, for left upper extremity peripheral neuropathy have been met, effective November 4, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8009-8513. 2. The criteria for restoration of the 30 percent rating for right upper extremity peripheral neuropathy have been met, effective December 15, 2020. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344. 3. The criteria for an initial rating of 40 percent, but no higher, for right upper extremity peripheral neuropathy have been met, effective September 6, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8009-8513. 4. The criteria for entitlement to a TDIU, prior to January 1, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1996. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and August 2020, the Board remanded the matter for additional development and consideration. The requested actions with respect to the claims adjudicated below have been completed and the appeal is once again before the Board. The Board notes that during the appellate period, a January 2021 rating decision assigned a TDIU, effective January 1, 2013; assigned a higher rating of 30 percent for left upper extremity peripheral neuropathy, effective September 6, 2019; and decreased the Veteran’s rating for right upper extremity peripheral neuropathy from 30 percent to 20 percent, effective December 15, 2020. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 126–27 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s bilateral upper extremity peripheral neuropathy associated with cerebrovascular accident and hypertension is rated under Diagnostic Code 8009-8513. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, Diagnostic Code 8009 applies to hemorrhages from the brain vessels and Diagnostic Code 8513 applies to peripheral nerves of all radicular groups. The Boards notes that the evidence of record indicates that all radicular groups are affected by the Veteran’s bilateral upper extremity peripheral neuropathy, and thus Diagnostic Code 8513 is the most appropriate. Moreover, the Board notes that rating the Veteran’s symptoms under Diagnostic Code 8513 is the most beneficial to Veteran. Under Diagnostic Code 8513, a 20 percent evaluation is assigned for mild incomplete paralysis of all radicular groups for both the major and minor extremities. Moderate incomplete paralysis of all radicular groups in the major extremity warrants a 40 percent rating, and 30 percent in the minor. Severe incomplete paralysis of all radicular groups in the major extremity warrants a 70 percent rating, a 60 percent in the minor. Complete paralysis of the all radicular groups warrants a 90 percent rating in the major extremity, and 80 percent in the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8513. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” 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. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree. Id. The Board observes that 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. The record indicates the Veteran’s right hand is his dominate (and therefore “major”) upper extremity. The Veteran was afforded a VA examination in November 2014, in which he reported left hand weakness with decreased grip strength. Upon examination, the Veteran’s left grip, wrist extension, and wrist flexion revealed less than normal strength. The Veteran’s bilateral biceps, triceps, and brachioradialis showed decreased reflexes. The examiner noted mild left upper extremity muscle weakness. The Veteran’s February and March 2017 private medical records noted intermittent numbness and weakness of the left upper extremity. Examination of the Veteran’s upper extremities revealed normal strength and no muscular atrophy. The Veteran was afforded a VA peripheral nerves examination in October 2019, in which he reported left arm weakness and numbness as well as pain with use. The examiner noted mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left upper extremity, and; mild paresthesias and/or dysesthesias, and mild numbness of the right upper extremity. Muscle strength testing revealed normal results for the Veteran’s right upper extremity while the Veteran’s left upper extremity revealed 4/5 for elbow flexion, elbow extension, wrist flexion, and wrist extension. The Veteran’s left grip and pinch were 3/5. No muscle atrophy or trophic changes were noted. The Veteran’s reflex examination showed normal results for the right upper extremity and negative results for the left upper extremity. Sensory examination revealed normal results. Regarding the Veteran’s left upper extremity, the examiner noted moderate incomplete paralysis of the upper radicular group, middle radicular group, and lower radicular group. No findings were made regarding the Veteran’s right upper extremity. An October 2019 VA central nervous system examination noted mild left upper extremity weakness. The Veteran’s right upper extremity was noted as normal. The Veteran was afforded another VA peripheral nerves examination in December 2020, in which he reported intermittent tingling of the hands. He also reported using a sling intermittently for his left arm. The examiner noted mild constant pain, moderate intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness of the left upper extremity, and; mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the right upper extremity. Muscle strength testing revealed normal results for the right upper extremity while the left upper extremity revealed 4/5 for elbow flexion, elbow extension, wrist flexion, and wrist extension, and pinch. The Veteran’s left upper extremity’s grip was 3/5. No muscle atrophy or trophic changes were noted. Reflex examination showed normal results except for the Veteran’s left bicep which was 3+. Sensory examination revealed normal results except for the Veteran’s left inner/outer forearm which was absent and hands/fingers which was decreased. The examiner noted moderate incomplete paralysis of the upper radicular group, middle radicular group, and lower radicular group of left upper extremity, and; mild incomplete paralysis of the upper radicular group, middle radicular group, and lower radicular group of right upper extremity. Left Upper Extremity Peripheral Neuropathy The Veteran’s left upper extremity peripheral neuropathy is in receipt of an initial 20 percent rating prior to September 6, 2019, and a 30 percent rating thereafter. Upon review of the record, the Board finds that, as of November 4, 2014, the objective evidence of record shows weakness and decreased grip strength in the Veteran’s left upper extremity associated with his cerebrovascular accident and hypertension. Thus, the Board finds the date of entitlement to be November 4, 2014. The Board finds that the objective evidence prior to November 2014 does not reveal left upper extremity impairment. Specifically, the Veteran’s VA and private medical records prior to November 2014 noted no weakness, tingling, numbness or peripheral motor deficits. Additionally, a June 2013 VA treatment note indicates that the Veteran’s generalized weakness was due to myositis as his symptoms subsided after taking medication for the condition. Considering all the evidence of record, to include the Veteran’s VA and private medical record as well as lay statements, the Board finds that a 30 percent rating is warranted for the entire appellate period. The Board finds that a rating in excess of 30 percent is not warranted at any time during the appellate period. Here, the evidence of record does not reveal severe incomplete paralysis or complete paralysis of the all radicular groups. Lastly, the Veteran has not demonstrated disability more than sensory loss, including muscle or trophic changes. In sum, the Board finds that the Veteran is entitled to an initial 30 percent rating, but no higher, for left upper extremity peripheral neuropathy, effective November 4, 2014. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b). Right Upper Extremity Peripheral Neuropathy The Veteran’s right upper extremity is in receipt of an initial 30 percent rating prior to December 15, 2020, and a rating of 20 percent thereafter. In this case, the reduction effectuated by the January 2021 rating decision did not result in a reduction of compensation payments being made. Specifically, prior to the reduction, the Veteran had a combined disability rating of 100 percent. Following the reduction, the Veteran had a combined disability rating of 100 percent. Accordingly, the Board finds that the RO complied with the procedural requirements under 38 C.F.R. § 3.105(e). Thus, as there was no procedural error in the reduction, the Board will now consider whether the reduction was legally and factually appropriate. In rating reduction cases, VA must establish, by a preponderance of evidence, that the reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). Finally, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. There must be actual improvement in the disability, not just a failure to meet the requirements of a rating under the currently assigned diagnostic code. If a rating at a particular level was erroneous and should never have been assigned, the proper method of correcting that error is through a finding of clear and unmistakable error in the original rating decision. Thus, if the RO reduces a disability rating in an attempt to correct a mistake in a prior rating decision, the reduction would be improper. In this case, the Board finds that the reduction was not proper as the evidence does not support any findings that the Veteran’s right upper extremity peripheral neuropathy has undergone any actual improvement. As such, the reduction of the disability assigned for the Veteran’s right upper extremity peripheral neuropathy from 30 percent to 20 percent, effective December 15, 2020, was improper. Accordingly, the previous rating must be restored. Moreover, the evidence of record clearly reflects that the Veteran is right arm dominant and, as such, that is considered his major extremity. Currently the Veteran’s right arm peripheral neuropathy is evaluated at 30 percent for moderate incomplete paralysis of the minor extremity, which is clearly erroneous in light of the evidence in the claims file. Additionally, the Board notes that the January 2021 supplemental statement of the case (SSOC) noted that the 30 percent rating was not considered a clear and unmistakable error as the adjudicator determined that the Veteran’s condition was moderate. Accordingly, the Board must take corrective action and assign an initial 40 percent rating for moderate incomplete paralysis of the major extremity, effective September 6, 2019. There is no objective evidence of record that shows right upper extremity impairment prior to September 2019. Additionally, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appellate period. Here, the evidence of record does not reveal severe incomplete paralysis or complete paralysis of the all radicular groups. Additionally, as mentioned, when the involvement is wholly sensory, no more than a moderate degree should be assigned. Here, the Veteran’s symptoms are almost entirely sensory. In sum, the Board finds that the preponderance of the evidence indicates that the Veteran’s right upper extremity has not experienced any actual improvement. Accordingly, the reduction was improper. Furthermore, the Boards finds that an initial 40 percent rating, but no higher, for right upper extremity peripheral neuropathy is warranted, effective September 6, 2019. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b). Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU prior to January 1, 2013. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the Veteran’s service-connected disabilities meet the schedular criteria for TDIU for the entire appellate period (from October 25, 2010). Thus, the remaining inquiry is whether the Veteran’s service-connected disabilities precluded employment prior to January 1, 2013. The Veteran filed an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in March 2014, indicating that he worked full-time as a church administrator from 1997 to 2007, and part-time as an assistant church administrator from September 2007 to December 31, 2012. The Veteran reported that while he was working part-time, he worked 24-hours per week and that his highest gross earnings per month were $1,400. A July 2014 Request for Employment Information in Connection with Claim for Disability (VA Form 21-4192), indicates that the Veteran last worked as an assistance church administrator on December 31, 2012. The Veteran worked 24 hours weekly and earned $19,242.18 in the 12-months preceding his last date of employment (before deductions). Marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. Id. This includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. As such, “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). During the appellate period, the Veteran worked part-time as an assistant church administrator. His income from this job has been between $16,800 to 19,242 annually; this is above the poverty threshold for one person throughout the appeal period. See Poverty Thresholds, U.S. Census Bureau, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited March 4, 2021). Accordingly, the evidence of record is against finding that the Veteran’s annual salary as an assistant church administrator was below the poverty threshold during the appellate period and therefore does not meet the definition of “marginal” by VA standards. As mentioned above, marginal employment may also be held to exist, on a facts-found basis when earned annual income exceeds the poverty threshold. The Board recognizes that the Secretary, as of this decision, has not defined “protected environment.” As such, said determinations must be made on a case-by-case basis based on the information and evidence of record. In this case, the evidence of record does not reflect that the Veteran’s employment was in a protected environment nor has the Veteran argued or produced evidence that his employment constituted a protected environment. In sum, the Board finds that the criteria for a TDIU, prior to January 1, 2013, have not been met. Accordingly, the claim is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.