Citation Nr: 21025909 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-10 502 DATE: April 29, 2021 ORDER A 50 percent rating for multiple sclerosis (MS) with right upper extremity (RUE) weakness prior to June 20, 2016 is granted. A rating in excess of 50 percent for MS with RUE weakness from June 20, 2016 is denied. A 10 percent rating for insomnia from January 19, 2016 to August 1, 2017 is granted. A rating in excess of 70 percent for generalized anxiety disorder (GAD) with insomnia and depressive features from August 2, 2017 is denied. Special Monthly Compensation (SMC) based on loss of use of the right hand is granted. REMANDED Service connection for obstructive sleep apnea (OSA) associated with MS is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his MS with RUE weakness produced severe incomplete paralysis from November 9, 2011 to June 20, 2016. 2. The preponderance of the evidence is against finding the Veteran’s MS with RUE weakness produced complete paralysis. 3. The preponderance of the evidence shows the Veteran’s insomnia produced impairment requiring control by medication from January 19, 2016 to August 1, 2017. 4. The preponderance of the evidence is against finding the Veteran’s GAD with insomnia and depressive features produced total social and occupational impairment. 5. The evidence is at least in equipoise as to whether the Veteran’s right hand impairment associated with his MS would be equally well-served by amputation with use of a suitable prosthetic appliance. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for MS with RUE weakness prior to June 20, 2016 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.120, 4.124a, Diagnostic Code (DC) 8018-8514. 2. The criteria for a rating in excess of 50 percent for MS with RUE weakness from June 20, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.120, 4.124a, DC 8018-8514. 3. The criteria for a 10 percent rating for insomnia from January 19, 2016 to August 1, 2017 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9400. 4. The criteria for a rating in excess of 70 percent for GAD with insomnia and depressive features from August 2, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9400. 5. The criteria for SMC based on loss of use of the right hand have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2000 to December 2004. The Veteran testified before the undersigned Veterans Law Judge in June 2020. A transcript of the hearing is associated with the record. Regarding the claim for SMC for loss of use of the right hand, the Veteran expressly raised this issue. See March 2021 statement. These claims are under the Board's jurisdiction as part and parcel of his increased rating claim. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); 38 C.F.R. § 3.155(d)(2). Increased Rating 1. Entitlement to a rating in excess of 30 percent for MS prior to June 20, 2016 2. Entitlement to a rating in excess of 50 percent for MS with RUE weakness from June 20, 2016 3. Entitlement to SMC for loss of use of the right hand Prior to June 20, 2016, the Veteran is assigned a 30 percent rating for MS. From June 20, 2016, the Veteran is assigned a 50 percent rating for MS with RUE weakness. The Veteran contends entitlement to an increased rating, to include entitlement to SMC(k) based on loss of use of his right hand. See March 2021 statement. Under DC 8018, the minimum rating for MS is 30 percent. 38 C.F.R. § 4.124a. This is also the maximum rating for MS under DC 8018. A parenthetical note preceding the rating criteria shows that MS and its residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Looking to the evidence during the appeal period, in his August 2011 application for benefits, the Veteran claimed MS with complete disability of the right arm. A March 2013 statement from the Veteran’s father observed the Veteran experienced much pain in his right arm and physical activities were limited to what he could do with one arm. A March 2013 statement from the Veteran reported since October 2011, he has had no real use of his right hand. He reported redness and swelling to his fingers and hand. He reported hypersensitivity from his fingers to his elbow. He reported normal function of the hand was not possible without excruciating pain. At a May 2014 VA examination for MS, the clinician noted the symptoms attributable to MS of muscle weakness of the extremities and insomnia. Strength testing and sensation testing was unremarkable. The examiner observed muscle atrophy to the right hand. A June 2016 DBQ diagnosed MS with complex residual pain syndrome. The clinician noted the symptoms attributable to MS of muscle weakness of the extremities and insomnia. Strength testing showed decreased right wrist, grip, and pinch. Sensation testing was decreased to the forearms and hands/fingers. The examiner described the severity of Veteran’s muscle weakness of the RUE as moderate. The clinician noted the impact of the Veteran’s MS on his ability to work was severe right hand pain. In a December 2016 statement, the Veteran reported no real use of his right hand, due to pain associated with contact or pressure. He stated he had no ability to grasp objects with this hand. A February 2017 statement from the Veteran’s partner observed the inability to use his hand on a daily basis. She stated he cannot tie his shoes or button a shirt. At an April 2019 VA examination for MS, the Veteran reported having no real use of his right hand. The examiner noted the symptoms attributable to MS of muscle weakness of the extremities, insomnia, and bowel dysfunction. Strength testing was decreased at the right wrist, grip, and pinch. Sensation testing was decreased at the right forearm and hands/fingers. Muscle atrophy was observed to the right hand. The examiner described the Veteran’s RUE muscle weakness as moderate with severe pain to light touch of the RUE. A December 2019 DBQ noted the symptoms attributable to MS of muscle weakness of the extremities, sleep disturbance, bowel dysfunction, erectile dysfunction, visual disturbance, and anxiety disorder. The clinician stated he was unable to test the right elbow or wrist due extreme pain with contact. The clinician observed right hand intrinsic muscle atrophy. The clinician opined the Veteran’s right hand central pain syndrome was so severe that amputation with prosthesis would equally service the Veteran. The clinician explained the Veteran is unable to have any significant grasp. A January 2020 letter from the clinician that completed the December 2019 DBQ stated he is a VA staff neurologist who treated the Veteran’s MS since 2018. He stated the majority of the Veteran’s disability related to MS comes from RUE weakness which started after an MS exacerbation in 2011. He stated the Veteran was initially thought to have complex regional pain syndrome, but given the fact his symptoms started during an MS exacerbation and have not responded to aggressive pain management and physical therapy, it is more likely than not his condition stems from the MS-related legion seen on MRI with T2 hypersensitivity from C6-C7 region. The clinician stated at this time he is only able to minimally use the right hand due to significant pain with contact. A September 2020 VA examination for MS reported upper extremity numbness, tingling and pain, decreased energy, erectile dysfunction, bowel and urinary incontinence, insomnia, and anxiety. Strength testing was decreased at the shoulder, elbow, wrist, grip, and pinch. Reflex testing was normal. Sensation testing was decreased at the shoulder, forearm, and hand. The clinician observed right hand atrophy. Resolving reasonable doubt in favor of the Veteran, the Board finds the 50 percent rating assigned on June 20, 2016 for MS with RUE weakness is warranted for the entire appeal period. The Veteran’s RUE weakness was reviewed under DC 8514. Under DC 8514, for a major extremity, a 50 percent rating is warranted for severe incomplete paralysis. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” are not defined in the regulations. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” In determining the severity of the Veteran’s RUE symptoms prior to June 2016, the Board gives probative weight to the Veteran’s statements describing his RUE symptoms and functional impairment during treatment visits. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). His statements are consistent with objective findings found on physical examination showing redness, swelling, atrophy, and reduced strength. See April 2012, May 2012, June 2012, October 2012, January 2013, March 2013, April 2013, May 2015, August 2015, and January 2016 VA treatment visits. These treatment visit statements are consistent with other lay statements made by the Veteran and his family prior to June 2016. The initial November 2011 application for service connection claimed MS with complete RUE disability. In a December 2012 statement, the Veteran reported he was living without any real use of his right hand. He stated his hand and fingers turn red and swell with hypersensitivity to his RUE. A December 2012 statement from the Veteran’s father stated the Veteran was limited to activities he can use one arm. Resolving reasonable doubt in favor of the Veteran, a 50 percent rating for MS with RUE weakness is warranted prior to June 2016. The Board considered whether a 70 percent rating for MS with RUE weakness was warranted at any point during the appeal period. 38 C.F.R. § 4.124a, DC 8514. The evidence does not support, nor has the Veteran contended, complete paralysis of the right hand including drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger, cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist, supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously, total paralysis of the triceps occurs only as the greatest rarity. As such, a rating in excess of 50 percent for MS with RUE weakness is not warranted during the appeal period. The Board considered the Veteran’s contention that his right hand symptoms warrant SMC(k) based on loss of use of his right hand. See March 2021 statement. SMC will be awarded for the anatomical loss of a hand or where there is “loss of use” of the hand. 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350(a)(2); 4.63. “Loss of use of the hand” means that no effective function remains other than that which would be equally well-served by an amputation stump below the elbow with use of a suitable prosthetic appliance. Id., Tucker v. West, 11 Vet. App. 369, 373 (1998). 38 C.F.R. § 3.350(a)(2). The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. Id. The Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected right hand symptoms produce loss of use, such that no effective function other than that which would be equally well-served by an amputation below the elbow with use of a suitable prosthetic appliance. The Board gives probative weight to the December 2019 opinion from Dr. R., a VA staff neurologist that has been treating the Veteran for his MS since 2018, stating the Veteran’s right hand functioning is so diminished that amputation with prosthesis would equally serve the Veteran. The clinician noted his central pain syndrome associated with his MS is so severe that he is unable to perform any significant grasp with that hand, which would be the similar function as a hand and forearm prosthesis. A January 2020 letter from Dr. R stated the Veteran is only able to minimally use his right hand due to significant pain with light contact. These medical opinions are consistent with Veteran lay statements and objective evidence of right hand atrophy. As such, the Board finds SMC(k) based on loss of use of the right hand is warranted. The Board notes the Veteran has been granted service connection for erectile dysfunction, GAD with insomnia, voiding dysfunction, bowel incontinence, LUE weakness, and RLE weakness. The evidence does not support, nor has the Veteran contended, other residuals associated with his MS, except as detailed in the remand section. In summary, the Board finds a 50 percent rating for MS with RUE weakness is warranted for the entire appeal period. Additionally, SMC based on the loss of use of the right hand is warranted. 4. Entitlement to a compensable rating for insomnia prior to December 19, 2019 5. Entitlement to a rating in excess of 70 percent for GAD with insomnia from December 19, 2019 The Veteran is assigned a noncompensable rating for insomnia prior to December 19, 2019 and a 70 percent rating for GAD with insomnia thereafter. Under the General Formula for Mental Disorders (General Formula), a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Board finds the preponderance of the evidence warrants a 10 percent rating for insomnia from January 19, 2016 to August 1, 2017. The preponderance of the evidence warrants a 70 percent rating for GAD with insomnia and depressive features from August 2, 2017. A January 19, 2016 VA treatment visit assessed insomnia and prescribed trazodone. A February 2016 VA treatment visit noted partial benefit from insomnia, but still having more bad nights than good nights. The Veteran’s trazodone dosage was increased. An August 2, 2017 VA mental health initial visit diagnosed major depressive disorder (MDD). The Veteran reported depression associated with his MS. The clinician noted the symptoms of little interest in doing things, feeling depressed, trouble sleeping, low energy, poor eating habits, low self-esteem, trouble concentrating, and thoughts of being better off dead. An August 2020 VA examination for mental disorder diagnosed GAD with depressive features. The clinician opined the Veteran’s GAD with depressive features produced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The clinician noted the symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, suicidal ideation, obsessional rituals which interfere with routine activities, and impaired impulse control. The preponderance of the evidence supports finding the Veteran’s insomnia symptoms required control by medication from January 19, 2016. See January 19, 2016 VA treatment visit. The preponderance of the evidence is against finding a rating in excess of 10 percent for insomnia from January 19, 2016. To warrant a 30 percent rating, the evidence must show his insomnia produced symptoms such as depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, or mild memory loss, cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. The evidence does not support, nor has the Veteran contended, his insomnia symptoms meet the criteria for a 30 percent rating prior to August 2, 2017. The preponderance of the evidence supports finding the 70 percent rating for GAD with insomnia and depressive features dates back to August 2, 2017. Although the August 2017 mental health visit diagnosed MDD, the August 2020 VA examination noted the Veteran’s GAD symptoms included depressed mood and chronic sleep impairment. The nature, severity, and frequency of the symptoms reported at the August 2020 VA examination are consistent with symptoms reported at the August 2017 treatment visit. The evidence does not support, nor has the Veteran contended, his GAD with insomnia and depressive features produced total occupational and social impairment to warrant a 100 percent rating. Looking to the criteria for a 100 percent rating, the evidence does not show the Veteran’s GAD with insomnia and depressive features produced gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. As such, a rating in excess of 70 percent for GAD with insomnia and depressive features from August 2, 2017 is not warranted. In summary, a 10 percent rating for insomnia from January 19, 2016 to August 1, 2017 is granted. A rating in excess of 70 percent for GAD with insomnia and depressive features from August 2, 2017 is denied. REASONS FOR REMAND Entitlement to service connection for OSA The Veteran has raised the issue of OSA as a residual of his MS. See June 2020 hearing testimony. Treatment records indicate the Veteran is diagnosed with OSA. The Board requests a medical opinion to determine whether his OSA is a residual of his MS. (Continued on the next page)   The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician regarding whether the Veteran’s OSA is at least as likely as not a residual of his service-connected MS. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.