Citation Nr: 21013021 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-34 743 DATE: March 8, 2021 ORDER A rating in excess of 30 percent for dystonia of the right arm is denied. FINDING OF FACT The Veteran’s dystonia of the right arm is manifested by no more than moderate incomplete paralysis of the major extremity. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for dystonia of the right arm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8514. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from October 1967 to May 1970 and from August 1970 to May 1992. The case was remanded by the Board in August 2018 and from October 2019 for further development of the evidence. This has been accomplished and the case has been returned for further appellate consideration. Entitlement to a rating in excess of 30 percent for dystonia of the right arm The Veteran contends that the nerve disability of his right arm, which has been diagnosed as dystonia, is more disabling than currently evaluated. Procedurally, service connection was initially granted by the Board in a September 2011 decision. In the implementing rating decision, the Veteran was initially awarded a noncompensable evaluation, which he appealed. The rating was then increased to 30 percent under Diagnostic Code (DC) 8514 for impairment of the radial nerve by rating decision dated in July 2015. As he continues to express dissatisfaction with the rating, and it is less than the maximum under the applicable criteria, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Paralysis of the radial nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8514. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8614 and 8714). Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). An examination was conducted by VA in March 2012. At that time, the pertinent diagnosis was dystonia with a focal in right arm tremors. The Veteran presented with symptoms of right-hand tremors and right arm pain. He reported receiving treatment from a private physician and stated that without medication his right arm had tremors and ached all the way to his neck; the medications decreased the tremors and pain. His list of medications included Trihexyphenidyl, Skelaxin, and Topiramate. He was right hand dominant. He reported muscle weakness. On physical examination, muscle strength was decreased to 4/5 in right elbow extension, right wrist flexion, right wrist extension, right grip, and right thumb to index pinch. Deep tendon reflexes were normal 2+ except for the right brachioradialis that was noted to be only 1+. Mild right upper extremity muscle weakness was noted. Peripheral nerve examination found that the Veteran did not have a diagnosis of peripheral neuropathy. He was noted to have moderate intermittent pain, and paresthesias and/or dysesthesias of the right upper extremity. Muscle strength testing was as described above. There was no muscle atrophy. Sensation testing was normal. There were no trophic changes. The examiner quantified the Veteran’s disability as mild incomplete paralysis of the radial nerve. An examination was conducted by VA in August 2016. At that time, the pertinent diagnosis was dystonia of the right arm. The Veteran took multiple medications. He had muscle weakness of the right upper extremity. Strength was 4/5 in right wrist flexion and extension as well as grip and thumb to index finger pinch. Deep tendon reflexes were normal at 2+. There was no muscle atrophy. Sensory examination showed mild right upper extremity muscle weakness. The examiner noted that the Veteran also had osteoarthritis of the right wrist that could also be contributing to the deficits in his right hand. The Veteran reported that his right-hand dystonia had was worse on active movement with cramping that could present functional limitations with writing or prolonged use of work with a writing utensil. This made it difficult for him to sign his name or write documents, although he could use electronic data entry or use his left hand. The examiner opined that the functional limitations of the right hand seemed to be more due to arthritis in the hand, wrist and fingers and not due to the Veterawn’s dystonia. Similarly, the arthritis seemed to limit functional capability in gripping and strength of the right hand and wrist rather than his service-connected dystonia. Private treatment records show that the Veteran receives treatment on a regular basis for pain of both arms and legs. When last evaluated, in October 2019, his chief complaint was of pain in the lower extremities. A peripheral nerve examination was conducted by VA in February 2020. At that time, the examiner stated that the Veteran did not have a diagnosis of a peripheral nerve condition. On central nervous examination, also conducted in February 2020, the diagnosis was dystonia. The Veteran had complaints of severe pain in the right wrist and was noted to have tremoring of the right hand and wrist with any movement. The Veteran stated that he could not write with his right hand. He was able to drive, but did so primarily with his left hand and arm. He had some degree of resting tremor of the right arm as well. He continued to take multiple medications. He described muscle weakness of the upper extremities. Strength of the right upper extremity was 5/5 in all areas but grip and thumb to index finger pinch that was noted as 4/5. Deep tendon reflexes were normal. There was no muscle atrophy attributable to a central nervous system condition. The examiner quantified the Veteran as having moderate right upper extremity muscle weakness. The examiner stated that dystonia was likely the most contributing factor for the right upper extremity, but aging, deconditioning, and arthritic conditions were also likely contributors. Based on the above, the Board finds that the disability is primarily manifest by pain, tremors and weakness of the Veteran’s major upper extremity. It has not been demonstrated that he has trophic changes, sensory disturbance, muscle atrophy, or complete paralysis. Moreover, the examiners have ascertained that some of the impairment of the Veteran’s right hand and wrist are the result of non-service-connected arthritis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis of the right radial nerve. The Board acknowledges the lay assertions of disability, but there is no evidence of severe disability as manifested by impairment of motor functions, trophic changes, sensory disturbance, or muscle atrophy. As such, the Board finds the medical of evidence of record to be more probative in the assessment of the Veteran’s functional impairment. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for dystonia of the right upper extremity. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.