Citation Nr: 21030701 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-22 250 DATE: May 19, 2021 ORDER Entitlement to an evaluation of 70 percent, but not higher, for unspecified mild neurocognitive disorder, from November 3, 2010, is granted. Entitlement to an initial evaluation of 40 percent, but not higher, for right upper extremity weakness, from November 3, 2010, is granted. Entitlement to an initial evaluation of 40 percent, but not higher, for right lower extremity weakness, from November 3, 2010, is granted. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran's unspecified mild neurocognitive disorder was manifested by occupational and social impairment, with deficiencies in most areas. 2. The Veteran's unspecified mild neurocognitive disorder has not resulted in total social and occupational impairment. 3. During the entire period on appeal, the Veteran's right upper extremity weakness was manifested by moderate incomplete paralysis of the radial, ulnar, and musculocutaneous nerves of the major extremity. 4. The Veteran's right upper extremity weakness was not manifested by severe symptoms or complete paralysis. 5. During the entire period on appeal, the Veteran's right lower extremity was manifested by moderately severe incomplete paralysis of the sciatic nerve. 6. The Veteran's right lower extremity weakness was not manifested by severe incomplete paralysis with marked muscular atrophy, or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 70 percent, but not higher, for unspecified mild neurocognitive disorder, from November 3, 2010, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9305. 2. The criteria for an initial evaluation of 40 percent, but not higher, for right upper extremity weakness, from November 3, 2010, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.21, 4.124a, Diagnostic Code 8513. 3. The criteria for an initial evaluation of 40 percent, but not higher, for right lower extremity weakness, from November 3, 2010, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.21, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1975 to August 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2011 and June 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In the February 2011 rating decision, the Veteran was awarded an increased 10 percent evaluation for decompression sickness with neurological residuals of loss of feeling in right arm and leg, headaches, and blurred vision in the right eye effective November 3, 2010. In July 2018, the Board remanded the Veteran's claim for consideration as to whether the Veteran should be assigned separate compensable ratings for complications associated with his decompression sickness. While on remand, in a June 2020 rating decision, the Veteran was awarded separate compensable evaluations for the following manifestations of his decompression sickness: (a) a 50 percent evaluation was assigned for headaches effective November 3, 2010; (b) a 50 percent evaluation was assigned for unspecified mild neurocognitive disorder effective September 10, 2019 (the effective date was later changed to September 23, 2019, see October 2020 rating decision); (c) a 20 percent evaluation was assigned for right upper extremity weakness from November 3, 2010, with an increased 40 percent evaluation effective September 10, 2019; and (d) a 10 percent evaluation was assigned for right lower extremity weakness from November 3, 2010, with an increased 20 percent evaluation effective September 10, 2019. When this case was last before the Board in October 2020, the Board denied a compensable rating for decompression sickness with blurred vision in right eye. The Board noted that a 50 percent disability evaluation assigned for service-connected headaches from November 3, 2010 constituted a full grant of the benefit sought on appeal with regard to that disability, as the maximum schedular rating was assigned throughout the entire rating period. See AB v. Brown, 6 Vet. App. 35 (1993). The Board remanded the remaining issues on appeal for additional AOJ action. Those issues have since been returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating -as well as for an initial rating or for staged ratings- is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). 1. Entitlement to a compensable rating for unspecified mild neurocognitive disorder prior to September 10, 2019, and an increased rating greater than 50 percent thereafter The Board notes that the June 2020 rating decision assigned a 50 percent disability evaluation for the Veteran's unspecified mild neurocognitive disorder effective September 10, 2019 (later changed to September 23, 2019, see October 2020 rating decision). Considering all relevant evidence, the Board finds that a disability evaluation of 70 percent, but not higher, for the Veteran's service-connected unspecified mild neurocognitive disorder for the entire period on appeal is warranted. The Veteran's unspecified mild neurocognitive disorder has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Diagnostic Code 9305. Under the general rating formula, a 10 percent evaluation is warranted if the evidence establishes that there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9305. A 30 percent evaluation is warranted when the mental disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent evaluation is warranted if the evidence establishes that there is occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted if the evidence establishes that there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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. Id. A 100 percent evaluation is warranted if the evidence establishes that there is 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 oneself 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. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In September 2019, the Veteran underwent two VA examinations. A September 2019 VA Mental Disorders examination noted a diagnosis of unspecified mild neurocognitive disorder resulting from the Veteran's in-service decompression sickness. This examiner noted the Veteran's unspecified mild neurocognitive disorder was productive of occupational and social impairment with reduced reliability and productivity. Psychiatric symptoms were identified as anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. On examination, the Veteran was reported to be very verbal and boastful, and dressed in clean, casual clothes. The Veteran reported a worsening of headaches that he had "built [his] life around." The examiner noted the Veteran was cooperative and demonstrated good eye contact. He had no psychomotor agitation, his speech was spontaneous, fluent, and not pressured. His thought process was noted to be linear, logical, and goal directed. He had no flight of ideas, no delusions, and denied suicidal ideation or homicidal ideation. He did not endorse obsessions or compulsions, or phobias. His thought process was intact, affect was reactive, and his mood was "angry but okay now." He denied current auditory or visual hallucinations, his insight and judgment were fair. He was alert and oriented to person, place, time, and situation. His cognitive function and memory were noted to be grossly intact. A September 2019 VA Central Nervous System and Neuromuscular Disease examination listed a diagnosis of decompression sickness with neurological residuals of loss of feeling in the right arm and leg, headaches, and blurred vision in the right eye. The September 2019 VA examiner noted the Veteran's report of chronic headaches and memory lapses. The examiner stated the Veteran had completed extensive speech therapy in the past, and that the functional impact of the Veteran's condition included impaired memory and challenges with pragmatic use of language. While no examination was conducted during the period on appeal prior to September 2019 for the Veteran's unspecified mild neurocognitive disorder, there is evidence indicating the Veteran has demonstrated severe symptoms of impaired memory and speech difficulties throughout the entire appellate period. A July 2009 VA neurology consultation record documents the Veteran's report that following his in-service decompression exposure, he experienced right body sensory symptoms and speech impairment which manifested as stuttering when he experienced a headache. A January 2018 VA neurology consultation record documents the Veteran's report of memory loss. After carefully reviewing the evidence of record, and giving the Veteran the benefit of the doubt, the Board concludes that such warrants a rating of 70 percent, but no higher, for the entire period on appeal. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this regard, the Board notes that even though the Veteran did not state the exact nature of his memory loss, there is no indication that the Veteran has been found to be disorientated as to time or place, or that he does not remember his own name. Additionally, the record shows the Veteran's personal hygiene to be good, his behavior appropriate, and his mood calm. He did not endorse suicidal or homicidal ideation. See January 2018 VA treatment record, and September 2019 VA Mental Health Examination. Regarding social impairment, the Veteran reported that while divorced, he "gets along great" with his three former spouses. Regarding occupational impairment, while the Veteran reported that he was unable to continue ranching due to inability to do physical activities, the Veteran reported that he went to school and subsequently worked for an aircraft company, he was a truck driver, and that he later became self-employed. See September 2019 VA Mental Health Examination. Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran's symptoms have remained constant at a 70 percent level for his unspecified mild neurocognitive disorder, staged ratings are not warranted. The Board finds that throughout the period on appeal, the nature and severity of the Veteran's unspecified mild neurocognitive disorder most closely approximates occupational and social impairment in most areas, the criteria for a 70 percent rating. In conclusion, the evidence is in equipoise and the Board finds that the criteria for an initial evaluation of 70 percent, but no higher, for unspecified mild neurocognitive disorder from November 3, 2010, are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence is against a higher rating during the appeal period. 2. Entitlement to an initial rating greater than 20 percent for right upper extremity weakness prior to September 10, 2019 and a rating greater than 40 percent thereafter 3. Entitlement to an initial rating greater than 10 percent for right lower extremity weakness prior to September 10, 2019 and a rating greater than 20 percent thereafter Service connection for right upper extremity weakness and for right lower extremity weakness was granted in the June 2020 rating decision. With regards to the Veteran's right upper extremity weakness, a 20 percent initial rating was assigned effective November 3, 2010, for mild incomplete paralysis, and an increased 40 percent evaluation was assigned effective September 10, 2019, for moderate incomplete paralysis. With regards to the Veteran's right lower extremity weakness, a 10 percent initial rating was assigned effective November 3, 2010, for mild incomplete paralysis, and an increased 20 percent evaluation was assigned effective September 10, 2019, for moderate incomplete paralysis. The Board finds that the Veteran's right upper extremity weakness warrants an initial 40 percent evaluation for moderate incomplete paralysis for the entire period on appeal. The Board also finds that the Veteran's right lower extremity weakness warrants an initial 40 percent evaluation for moderately severe incomplete paralysis, for the entire period on appeal. Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a. The Veteran's right upper extremity weakness is rated under Diagnostic Code 8513 for all radicular groups. The Veteran is right-hand dominant, and the right upper extremity is his "major" arm. Under Diagnostic Code 8513, incomplete paralysis of the major radicular groups warrants a 70 percent evaluation if it is severe, a 40 percent evaluation if it is moderate, and a 20 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8513. The Veteran's left lower extremity weakness is rated under Diagnostic Code 8520 for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Here, the Veteran underwent three VA examinations. A February 2011 VA examiner noted right arm numbness and weakness, and right leg numbness and some weakness. The severity of the right arm and right leg numbness was rated "6 out of 10," abnormal sensation rated "6 out of 10," and pain rated "6 out of 10." The examiner noted there was no paralysis of the affected parts. The examiner stated that the symptoms described by the Veteran were constant. Overall functional impairment was described as weakness with extended exertion. The examiner noted that neurological and motor function were within normal limits, but that the sensory function for the Veteran's right upper, and lower extremity was decreased. The September 2019 Peripheral Nerves Conditions examination noted the Veteran's right upper extremity weakness was mild in severity, with constant pain. Additionally, the examiner noted mild paresthesias and numbness affecting the right upper extremity. The VA examiner noted the presence of decreased reflexes in the right upper extremity during neurological examination. Similarly, the September 2019 Peripheral Nerves Conditions examination noted the Veteran's right lower extremity weakness was mild in severity, with constant pain. The examiner noted mild paresthesias and numbness affecting the right lower extremity. The VA examiner noted the presence of decreased reflexes in the right lower extremity during neurological examination. The September 2019 Central Nervous System and Neuromuscular Diseases examination noted the Veteran's report of sensory challenges and weakness in the right arm and leg. The examiner added that the Veteran had completed extensive occupational and physical therapy in the past. Functional impact of the Veteran's right upper extremity weakness was described as an inability to lift more than 10 pounds. Functional impact of the Veteran's right lower extremity weakness was described as ambulation limited to 15 minutes at a time. Based on the above, an initial 40 percent evaluation associated with moderate incomplete paralysis is appropriate for neurological impairment of the right (major) upper extremity. The Board finds the Veteran's lay assertions and the medical evidence establishes that right upper extremity weakness has most nearly approximated moderate incomplete paralysis during the entire period on appeal. A rating higher than 40 percent is not warranted as there is no medical evidence of neurological impairment that most nearly approximates severe, nor has the Veteran provided any specific statements in support of the claim, aside from those given to the February 2011 and the September 2019 VA examiners describing constant weakness and pain in the right upper extremity. These symptoms are contemplated by a 40 percent evaluation and a higher evaluation is, therefore, not warranted. With regard to the Veteran's right lower extremity weakness, the Board notes that the September 2019 Peripheral Nerves Conditions examination indicates the Veteran had normal gait and ambulated without use of any assistive devices. The September 2019 Central Nervous System and Neuromuscular Diseases examination also indicated normal gait. However, the record includes a March 2014 VA podiatry record which documents a loss of sensation to the right lateral forefoot, as well as the Veteran's report of worsening pain that caused him to alter his gait. The January 2018 VA neurology consultation record documented the Veteran's report of loss of balance. Having carefully reviewed the record, the Board concludes that during the period on appeal, the evidence is in relative balance as to whether the Veteran's right lower extremity weakness was productive of moderately severe incomplete paralysis. Specifically, there is clinical evidence of altered gait and loss of balance due to right leg pain and weakness. The Board, therefore, finds that for the period from November 3, 2010, the lay and medical evidence supports a finding that the Veteran's right lower extremity weakness was productive of symptoms more closely approximating the 40 percent evaluation. An evaluation higher than 40 percent is not for application. The record does not reflect severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. Indeed, the September 2019 Peripheral Nerves Condition examiner noted there was no evidence of muscle atrophy. Sensation was decreased in the right lower extremity, but otherwise intact. Thus, the 40 percent evaluation assigned herein for the entire period on appeal is appropriate. In sum, the Veteran's right upper extremity weakness manifests moderate incomplete paralysis warranting an initial 40 percent evaluation for the entire period on appeal; and the Veteran's right lower extremity weakness manifests moderately severe incomplete paralysis warranting a 40 percent initial evaluation for the entire period on appeal. The Board has considered whether there is any other schedular basis for granting higher ratings for the neurological impairment other than the ratings discussed above but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the grant of higher schedular ratings. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. Amanda Christensen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.