Citation Nr: 21021991 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-12 996 DATE: April 14, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for cerebrovascular accident (CVA) residuals is denied. FINDING OF FACT The Veteran did not have additional residuals of a CVA not contemplated by the currently assigned minimum schedular rating or his separately service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to an increased evaluation in excess of 10 percent for cerebrovascular accident (CVA) residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 34.1, 4.2, 4.3, 4.7, 4.120, 4.124a, Diagnostic Code 8009. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to July 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision. The Veteran was afforded a hearing before a Veterans Law Judge in May 2019, who is no longer employed by the Board. A transcript is associated with the claims file. The Veteran was offered the opportunity to have an additional hearing; however, a response from the Veteran was not received. See January 2021 letter. In October 2019, the Board remanded the issue for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to an increased evaluation in excess of 10 percent for cerebrovascular accident (CVA) residuals The Veteran contends a higher rating is warranted for his service-connected cerebrovascular accident residuals due to hand dexterity problems, memory problems, balance issues, and headaches. 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. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a 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. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Currently, the Veteran’s cerebrovascular accident residuals is assigned a 10 percent disability rating, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8009. Under Diagnostic Code 8009, a hemorrhage involving the blood vessels of the brain warrants a 100 percent rating for a period of six months. Thereafter, the rating will be based on associated residual disability, with a minimum rating of 10 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8009. In the March 2012 Notice of Disagreement, the Veteran relates that his right arm and leg do not “feel” the same as his other arm and leg. His right side has tingling, tremors at times, and a club-like feeling. The right side is hyper-sensitive and feels like it is asleep. Coordination is diminished, making some tasks difficult. He does not have any balance where he can stand on one leg and takes shots three times a week to help lessen the sensations of tingling and tremors. The December 2016 VA examination report noted the Veteran had muscle weakness in the upper and/or lower extremities. He has bowel functional impairment and voiding dysfunction. He has an abnormal gait, which is also due to his service-connected multiple sclerosis. The examiner stated that the Veteran’s physical findings upon examination are due to his service-connected multiple sclerosis condition. An April 2018 VA treatment note reflects the Veteran complained of worsening weakness in the bilateral lower extremities and increased dizziness. This was attributed to the Veteran’s multiple sclerosis. The Veteran relates that his right foot feels like it always has a boot on it. See Transcript of May 2019 Board Hearing at 22. His right hand feels like it always has a “big Mickey glove on it.” Id. at 23. He is unable to pick things up with his right hand and drops things. Id. His long-term and short-term memory have worsened. Id. at 24-25. The Veteran experiences incapacitating headaches almost daily, lasting from thirty minutes to an hour. Id. at 30. He loses his balance during a headache. Id. His vision gets blurry in the evening and he occasionally mumbles. Id. at 32. A January 2017 private treatment record notes the Veteran’s neurological examination revealed an alert mental status, recollection of objects three out of three times, normal speech, motor and sensory intact, reduced pinprick of the lower extremity, and reduced proprioception of the lower extremity. A November 2019 VA examiner opined the Veteran does not have CVA residuals. He also found it is difficult to differentiate what portion of the symptomatology or neurological effects are attributable to each of the Veteran’s service-connected and nonservice-connected disabilities. The Veteran was initially diagnosed to have CVA during service and had resolution of his neurologic deficits. He was later discovered to have multiple sclerosis. The CVA diagnosis was made erroneously since an MRI was not yet invented and available in 1977. This imaging study can diagnose multiple sclerosis. Further review of the service treatment records revealed that the medical specialists who evaluated him at that time for his sudden onset of right-sided weakness and hyperesthesia could not make a conclusive diagnosis for either CVA or multiple sclerosis. This was concluded after diagnostic testing was done. The Veteran has resolution of his neurologic symptoms as shown on the service records but only to recur several years later. The recurrence will be followed by improvement of his symptoms. This clinical pattern of his disease in hindsight resembles multiple sclerosis and was confirmed by his neurologist. The examiner stated that the Veteran’s symptoms of fatigue, walking difficulties, numbness or tingling, spasticity, weakness, and vision problems are more consistent with symptoms of multiple sclerosis rather than residuals of CVA. Given the above, the Board finds the competent, medical evidence does not demonstrate additional, compensable residuals of the in-service CVA, nor does it relate the Veteran’s reported symptomatology to the CVA. In this respect, while the Veteran is competent to report such symptomatology, he is not competent, as a lay person, to relate his symptoms to a specific diagnosis such as a CVA, as such determination extends beyond an immediately observable cause-and-effect process and involves specialized knowledge of the impact of a CVA on other bodily systems. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As a result, the Board affords greater probative weight to the VA examiners’ findings regarding the symptomatology attributable to such disability. Consequently, the Board finds the evidence does not show symptomatology that is not contemplated by the currently assigned 10 percent rating for residuals of CVA under Diagnostic Code 8009. 38 C.F.R. § 4.124a. The Board notes the Veteran is service connected for multiple sclerosis under DC 8018. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In this case, the Veteran’s symptoms are rated under DC 8018, and to allow a separate rating for residuals in addition to multiple sclerosis would constitute pyramiding. 38 C.F.R. §§ 4.14, 4.124a. Accordingly, entitlement to an increased rating for CVA residuals in excess of 10 percent is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.