Citation Nr: 21020883 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 12-15 630 DATE: April 8, 2021 ORDER Entitlement to an initial disability evaluation in excess of 30 percent for paralysis agitans is denied. REMANDED Entitlement to total disability evaluation based on individual unemployability, due to service-connected disabilities (TDIU), prior to March 11, 2020 is remanded. FINDING OF FACT The objective medical evidence does not show that bilateral upper and lower-extremity tremors were productive of incomplete or complete paralysis, or other physical manifestations at any point during the appeal period. CONCLUSION OF LAW The criteria for an initial disability evaluation in excess of 30 percent for upper and lower-extremity tremors are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.27, 4.124a, Diagnostic Codes (DCs) 8099-8004, 8511-8512, 8514-8516, 8520-8521, 8524 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from December 1975 to November 1979. This appeal was previously before the Board in September 2020. It has now been returned to the Board for further appellate action. All procedural history is incorporated by reference at this time. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as “pyramiding,” must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2020). 1. Entitlement to an initial disability evaluation in excess of 30 percent for upper and lower-extremity tremors. The Veteran’s disorder is evaluated under Diagnostic Code 8099-8004. Hyphenated diagnostic codes are used when rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. An unlisted disease, injury or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the body-segment or body-system. The last two digits will be “99” for all unlisted conditions. 38 C.F.R. § 4.27. Under Diagnostic Code 8004, a minimum rating of 30 percent is assigned for paralysis agitans. 38 C.F.R. § 4.124a. Paralysis agitans is also known as Parkinson’s disease. Dorland’s Illustrated Medical Dictionary, at 972 (26th ed. 1990). The minimum rating is the sole rating provided under Diagnostic Code 8004. However, the Veteran contends that his service-connected undiagnosed condition manifested by upper and lower-extremity tremors is more severe than indicated by the 30 percent disability rating awarded. When an unlisted condition is encountered it will be permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Evaluations of neurological conditions and their residuals may also be rated from 10 to 100 percent in proportion to the impairment of motor, sensory or mental function. Psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, and visceral manifestations are to be considered. With partial loss of use of one or more extremities from neurological lesions, diseases and residuals are to be rated by comparison with mild, moderate, severe, or complete paralysis of peripheral nerves. An October 2010 rating decision granted service connection for bilateral upper and lower-extremity tremors rated as 30 percent disabling, effective May 28, 2010, the date of claim. VA received the Veteran’s Notice of Disagreement (NOD) with the decision on March 29, 2011, thereby commencing the appeal period. The Board begins its consideration of the evidence within approximately one year prior to May 28, 2010, the date of claim. In August 2010, the Veteran underwent a VA examination for peripheral nerves, in which the VA examiner noted the Veteran’s reports of experiencing hand tremors with activity. On examination, he found the disorder is not a result of brain disease, injury, spinal cord disease, cervical disc disease, or trauma to the nerve roots. Instead, he found mild tremors in the bilateral upper extremities, with loss of fine motor control and of “central origin,” rather than a particular major nerve being affected. Additionally, he found a left lower extremity tremor, described as a “very faint tremor of foot” and a right-lower-extremity tremor, described as “mild tremor of feet.” Both were also identified as being of central origin. Sensory function was normal for both the upper and lower bilateral extremities. The August 2010 VA examiner diagnosed essential benign tremors of bilateral hands and feet, noting mild to moderate effect on the Veteran’s usual occupation and daily activities pertaining to dexterity. A September 2010 VA examiner conducted a peripheral nerves examination, in which she noted the Veteran’s reports of bilateral upper and lower extremity tremors for the past year becoming worse, with flare-ups in both extremities occurring one to two times per week, lasting a few minutes producing numbness, but no functional loss. The Veteran further reported overall numbness and tingling in his hands and feet, but noted that he was able to accomplish his daily activities. Prior to the physical examination, the September 2010 VA examiner concluded the affected nerves are the large and small nerves of the hands and feet. On physical examination, the Veteran was noted to be right-handed. Muscle strength in all groups was normal, as was sensation testing in both extremities, with the exception of decreased sensation to vibration in the left-lower extremity. Deep tendon reflexes were rated as a 2 out of 4, there was no joint tenderness and no muscle wasting or atrophy. She diagnosed bilateral upper and lower-extremity paresthesias. On neurological examination, The September 2010 VA examiner noted the Veteran’s reports of periods of tremors having been constant since active service, occurring daily at mild to severe levels. They also occurred with or without the use of hands or lower extremities, but without pain, weakness, fatigue or functional loss. On further physical examination, she made no findings of any relation to headaches, tics and paramyoclonus complex, affecting muscle group or to chorea, or choreiform disorders. She diagnosed bilateral upper and lower-extremity tremors. A March 2011 VA primary care note shows a neurological symptom of bilateral tremors of the upper extremities, right greater than left. The diagnostic impression was stable essential tremor. In August 2011, a second treatment provider found as a neuropsychological symptom mild intention tremor. The diagnostic impression also was a stable essential tremor. In a June 2012 VA occupational therapy consult, the occupational therapist noted the diagnosis of essential tremors and administered testing based on the TRG Essential Tremors Rating Scale (TETRAS) V3.1, activities of daily living subscale (0-4 scoring). The results were rated at a 2, for mild overall disability, with normal speaking, and all other mild symptoms related to tremors interfering with activities of daily living. There was no head, face or voice tremor. VA treatment notes revealed visits to see a neurology specialist between June 2012 and October 2020. The treatment provider noted the Veteran’s reports of worsening hand tremors, no drinking of alcohol, no family history of dementia, and no family history of Parkinson’s disease. The treatment provider repeatedly observed the Veteran as having tremors consistent with essential tremors and did not find any indications of Parkinson’s disease. In this period, diagnoses remained as essential tremors, sometimes noted as stable, unchanged or improved. There were no headaches, weakness, numbness, incontinence, vertigo, vision disturbances, seizures, loss of consciousness, or seizures. On examination, he was able to complete most physical tests without ataxia. Postural tremors were noted, but reflexes, gait, station, tandem, and toe and heel walks were normal. In January 2016, the Veteran underwent a VA examination for central nervous system and neuromuscular diseases. The VA examiner relayed a 1976 diagnosis of essential tremors. He noted the Veteran’s reports of difficulty with eating, drinking, writing, and using tools and being unable to tolerate the side-effects of medications. He further noted from his review of the record that in a recent January 2016 “neuro/movement exam,” the treatment provider found action tremors of the bilateral upper extremities but no tremors of the bilateral lower extremities. The January 2016 VA examiner observed “tremors of the legs are unusual in essential tremors.” On examination, there was no muscle weakness in the bilateral upper and lower-extremities and no swallowing and respiratory disorders. Bilateral upper and lower-extremity muscle strength and deep tendon reflexes were normal. All flexion maneuvers of each segment of the bilateral upper and lower-extremities were normal. Further noted was mild right-upper-extremity action and rest tremors and moderate left-upper-extremity action tremor. In looking to the Unified Parkinson’s Disease Rating Scale, in which ratings range from 0-normal to 4-severe, the January 2016 VA examiner noted that tremors at rest were 0 in the face, left upper extremity and the bilateral lower extremities. Tremors were rated at a 2 in the right upper extremity and a 3 in the left upper extremity. There was no rigidity, akinesia, speech and facial expressions were normal, and postural stability was normal. The January 2016 VA examiner noted the Veteran used no assistive device and he found no mental health disorder, cognitive impairment or dementia. The January 2016 VA examiner further found the Veteran’s central nervous system disorders impact his ability to work, noting that the Veteran is not currently working and last worked as a truck mechanic. Limitations included activities involving fine motor coordination and dexterity of the bilateral hands and upper extremities based on his claimed disorder. He was also noted to have mild to moderate limitations with eating, drinking, writing, or using tools based on essential tremors, but no functional limitations based on his claimed disorder were noted. The examiner finally noted that there were no lower extremity tremors noted on examination despite previous notations to the contrary. The Board will briefly note that it is aware that the Veteran has consistently reported that he has never received a diagnosis of Parkinson’s disease. Nonetheless, the findings of the Unified Parkinson’s Disease Rating Scale testing are relevant for the Board’s consideration, as it does provide a scaled method of measuring the severity of tremors and, presumably, any paralysis. In a February 2016 VA occupational therapy consult, the occupational therapist again administered the TETRAS rating scale, issues with activities of daily living involving the upper extremities. However, his overall disability continued to be rated as a 2, without any non-physical symptoms noted with regard to the face or voice. VA neurology outpatient notes from January 2017, July 2017 and February 2018 revealed largely similar findings, with the Unified Parkinson’s Disease Rating Scale, with the similar results previously shown. Specifically, he was mostly rated between 0 to 1, with action tremors being rated at 3. Speech, facial expression and gait continued to be normal. An October 2018 VA TBI consult note contains a Neurobehavioral Symptom Inventory, with a rating scale of 0 to 4 (for none, mild, moderate, severe, and very severe). Some relevant findings included no feelings of dizziness, but loss of balance and numbness noted. VA treatment notes from August 2018, February 2019, August 2019, and February 2020 the Unified Parkinson’s Disease Rating Scale, with the following results similarly showing no tremors at rest, but with action tremors in the hands rated at 3. There was no rigidity, and the Veteran was able to complete most physical testing. Once again, his speech and facial expressions, as well as posture were normal, and without akinesia. In a December 2020 VA examination for Parkinson’s disease, the VA examiner at the outset stated the Veteran does not now have or has ever been diagnosed with Parkinson’s disease and made no diagnosis, with the exception of tremors. She noted balance impairment and bradykinesia or slowed motion. Additionally, noted were mild bilateral upper-extremity tremors and mild left-lower-extremity tremor, without findings in the lower extremity. She noted no muscle rigidity, no mental manifestations and no additional manifestations (e.g., difficulty chewing and swallowing). She concluded the disorder impacted the Veteran’s ability to work as a truck mechanic, noting he had lost zero to one week of work-time in the past 12 months and observing that the Veteran’s benign essential tremor of the bilateral upper extremities/left lower extremity and traumatic brain injury cause the Veteran to have rhythmic shaking movements which can interfere with activities of daily living. He has had multiple falls throughout years related to tremors and it affects balance coordination. Lastly, she remarked, that while the Veteran stated that he never had a diagnosis of Parkinson’s disease, he does have diagnosis of essential tremor of bilateral upper extremity/left lower extremity, as well as a TBI in 2017; related to balance or coordination caused by the essential tremor. As stated above, Diagnostic Code 8099-8004 indicates an unlisted disorder in the rating schedule and, in order to afford the Veteran the broadest opportunity to attain the maximum benefits permitted under regulations, the Board is required to look to analogous or related diagnostic codes indicating a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. If there are identifiable residuals that can be rated under a separate diagnostic code and the combined disability rating resulting from these residuals exceeds 30 percent, then these separate ratings will be assigned in place of the minimum rating assigned under Diagnostic Code 8004. Diagnostic Code 8004 falls under the broad rating category of organic diseases of the central nervous system. However, the record consistently showed the area of “anatomical localization,” that is to include say, the specific body-segments of the bilateral upper and lower-extremities which are affected by tremors are the hands and feet. Therefore, the most closely related diagnostic codes for hands would be found under the rating category of Diseases of the Peripheral Nerves. Diagnostic Code 8512 addresses the lower radicular nerve group, which include the radial, median and ulnar nerves and in turn control the movements of the hand, wrist and fingers. However, the higher ratings allowed under this diagnostic code each require findings of complete or incomplete paralysis. Although the Veteran’s lay statement accompanying his October 2016 Veterans Appeals Form 9 asserts that he experiences numbness, tingling, and loss of sensation in both hands and has functional loss in both hands and the TETRAS and Parkinson’s disease tests above show some tremors at level 3, reasonably interpreted to be “severe,” there are no findings of incomplete or complete paralysis at any level on those tests or in the record overall. Therefore, this Diagnostic Code can offer no higher evaluation. Diagnostic Codes 8514 through 8519 provide criteria for evaluation of a specific nerve in an upper extremity. However, both Diagnostic Code 8514, addressing the radial nerve, and Diagnostic Codes 8515 and 8516, addressing the ulnar nerve, also require findings of incomplete or complete paralysis and are therefore cannot provide the Veteran with higher ratings. The Veteran’s lay statement accompanying his October 2016 Veterans Appeals Form 9 also asserts that his “fingers/wrist locks up on the right side” and his right forearm “gets real tight right before locking up. Diagnostic Code 8511 is the only code addressing those body-segments and offering higher ratings than the 30 percent assigned to the Veteran. However, once again, findings of complete and incomplete paralysis must be shown. Looking to analogous or closely related diagnostic codes for the lower extremities, particularly as the feet are affected, Diagnostic Codes 8520, 8521 and 8524 provide higher ratings, but also require findings of paralysis and, as there were no findings of paralysis in the Veteran’s lower extremities, they do not offer the possibility of a higher rating. The Board will note here that, although the Board included in the above summary of the record findings relevant to essential tremors from a Neurobehavioral Symptom Inventory, conducted in a polytrauma examination, as part of an October 2018 VA TBI consult and the December 2020 VA examiner remarked at the end of her examination report that TBI in part produced the Veteran’s tremors. In this regard, the Veteran in fact has been separately service-connected and rated for TBI, which otherwise is not documented as associated with benign essential tremors. The Veteran’s 70 percent rating for TBI is based on findings for Facet 1 for “memory, attention, concentration...”, which the record shows is not related to any of the symptoms associated with the 30 percent evaluation for essential tremors. Therefore, the diagnostic code for TBI is not an analogous or closely related diagnostic code for rating purposes of essential tremors. The Board has carefully considered the Veteran’s lay statements, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board is well aware lay persons are competent to report on matters they observe or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which he feels and sees and there is no reason to doubt his credibility. However, his lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. As stated above, the Veteran contends Diagnostic Code 8004 and its sole 30 percent rating do not reflect the worsening nature, extent and severity of his bilateral upper and lower-extremity tremors, particularly in his hands and feet. However, this is the highest permitted rating under Diagnostic Code 8004 without other physical manifestations. In this regard, with the exception of tremors, there have been no manifestations in his voice, posture, or gait which have been attributed to his tremors. The Board has also looked to the rating criteria of no less than eight analogous or closely related diagnostic codes to provide the Veteran with any alternatives for evaluations at a higher rating percentages. However, the record of examinations and numerous treatment visits over the period of August 2010 through December 2020 did not produce findings which satisfy the relevant rating criteria. Without such findings, the Veteran cannot attain a higher rating. The Board therefore assigns more probative value to the findings of the numerous VA examiners and the excess of testing rendered by the neurological specialists and occupational therapists between March 2011 and February 2020. The Veteran’s examinations and testing were conducted by medical professionals during in-person sessions with the Veteran, they thoroughly reviewed of the Veteran’s medical history and their findings, for the reasons stated above, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Great probative weight is attached to these medical findings. For the foregoing reasons and based on the evidence of record, the Board finds the preponderance of the medical evidence does not support an initial disability evaluation in excess of 30 percent for upper and lower-extremity tremors. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). REASONS FOR REMAND Prior to March 11, 2020 the Veteran was service-connected for bilateral upper and lower-extremity tremors at 30 percent, TBI at a 10 percent, tinnitus at 10 percent, and bilateral hearing loss at a noncompensable rating. Combined, the Veteran’s service-connected disabilities were at 40 percent at their highest in this period. Thus, the combination did not satisfy the regulatory threshold of a single 60 percent rating or a combined rating of 70 percent at that time. Nonetheless, and as discussed in greater detail above, several VA and private examiners had found the Veteran’s tremors to potentially preclude him from obtaining and maintaining gainful employment. The Board is prohibited from adjudicating entitlement to a TDIU on an extraschedular basis in the first instance. See 38 C.F.R. § 4.16 (b); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (citing Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995). Thus, a remand for referral to the Director Compensation is necessary. Additionally, the Board notes that the Veteran was directed by the previous Board remand to complete and submit a VA Form 8940. He has submitted statements asserting that it was not feasible for him to do so. Importantly, the Board notifies him that a grant of TDIU is unlikely without such a form which would enlighten the Board as to the Veteran’s educational and employment histories. Specifically, a VA Form 21-8940 requests information regarding the Veteran’s employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the Veteran left his last job, and whether the Veteran has attempted to obtain employment since he became too disabled to work. A grant of a TDIU cannot be made without the completion of this form. Thus, the Veteran is advised one final time to complete and return the form. The matter is REMANDED for the following actions: 1. Send the Veteran a notice letter advising him about what is needed to substantiate a claim for TDIU prior to March 11, 2020. Request that he complete a VA Form 21-8940, to obtain relevant employment information and to authorize VA to contact form employers as necessary for information regarding his employment. 2. Then, refer the issue of entitlement to a TDIU prior to March 11, 2020 to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16 (b), and readjudicate the claim. M. YACOUB Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.