Citation Nr: 21042342 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-14 067 DATE: July 12, 2021 ORDER Entitlement to an initial 10 percent disability rating, but no higher, for a swallowing disability is granted. Entitlement to an initial 20 percent disability rating for a weakness, right lower extremity, is granted. Entitlement to an initial 40 percent disability rating for a weakness, right upper extremity, is granted. FINDINGS OF FACT 1. The Veteran's swallowing disability is the result of incomplete moderate paralysis of the tenth (pneumogastric, vagus) cranial nerve. 2. The Veteran's weakness, right lower extremity, is most accurately characterized as moderate incomplete paralysis. 3. The Veteran's weakness, right upper extremity, is most accurately characterized as moderate incomplete paralysis of the major extremity. CONCLUSIONS OF LAW 1. The criteria are met for 10 percent disability rating, though no greater, for the service-connected swallowing disability. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1 - 4.14, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8310. 2. The criteria are met for 20 percent disability rating, though no greater, for the service-connected weakness, right lower extremity. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1 - 4.14, 4.123, 4.124, 4.124a, DC 8512. 3. The criteria are met for 40 percent disability rating, though no greater, for the service-connected weakness, right upper extremity. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1 - 4.14, 4.123, 4.124, 4.124a, DC 8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from May 1958 to July 1980, to include service in the Republic of Vietnam. The Board previously adjudicated the issues listed above in a March 2019 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (CAVC). The issues are again before the Board of Veterans' Appeals (Board) as the result of a CAVC order granting a joint motion for partial remand. On appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued a May 2020 Order that partially vacated the Board's prior March 2019 decision's denials of a compensable rating for a swallowing disability, a rating in excess of 20 percent for right upper extremity weakness, and a rating in excess of 10 percent for right lower extremity weakness; and remanded the matters to the Board. The Court's Order granted an April 2020 Joint Motion for Partial Remand (JMR) filed by both VA and Appellant ("the Parties"). The appeal has been returned the Board for further adjudication and consideration of these increased rating claims. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to an initial compensable disability rating for a swallowing disability The Veteran asserts that he is entitled to an initial compensable rating for his swallowing disability. The Veteran's swallowing disability evaluated under Diagnostic Code 8310. 38 C.F.R. § 4.124a. Diagnostic Code 8310 provides a 10 percent disability rating for incomplete moderate paralysis of the tenth (pneumogastric, vagus) cranial nerve. A 30 percent disability rating is assigned for incomplete severe paralysis of the tenth (pneumogastric, vagus) cranial nerve. A maximum 50 percent disability rating is assigned for complete paralysis of the tenth (pneumogastric, vagus) cranial nerve. A Note indicates that these ratings are dependent upon the extent of sensory and motor loss of the organs of voice, respiration, pharynx, stomach, and heart. The Veteran was afforded a VA Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaires (DBQs) in April 2016, December 2020, and May 2021. At each examination, the Veteran examiner determined that the Veteran had mild difficulties swallowing. At the April 2016 and December 2020 Central Nervous System and Neuromuscular Diseases DBQs, the Veteran reported difficulty swallowing and feeling like he needed to clear his throat at all the time. Based on the probative evidence of record and affording the benefit of the doubt to the Veteran, the Board finds that the Veteran's swallowing disability is a result of incomplete moderate paralysis of the tenth (pneumogastric, vagus) cranial nerve. Accordingly, entitlement to an initial 10 percent disability rating is warranted. A disability rating in excess of 10 percent is not warranted because the Veteran's swallowing disability is not a result of incomplete severe paralysis of the tenth (pneumogastric, vagus) cranial nerve. At each of the Central Nervous System and Neuromuscular Diseases Disability Benefits Questionnaires (DBQs), the Veteran did not report restricted diet due to swallowing disability, hoarseness, or paralysis of soft palate with swallowing difficulty. At the April 2016 Central Nervous System and Neuromuscular Diseases DBQ, the Veteran did claim that his speech was affected, stating, "I try to say something and my emotions make me laugh or cry." However, the April 2016 examiner did not find constant inability to communicate by speech, speech not intelligible or Veteran is aphonic, or paralysis of soft palate with swallowing difficulties and speech impairment. Moreover, a subsequent medical opinion obtained in May 2021 determined that the Veteran's varying range of emotions when trying to speak was the result of Pseudobulbar Affect (PBA) due to the Veteran's service-connected thrombosis, TIA, cerebral infraction. Accordingly, The Board finds that the probative medical evidence establishes that the Veteran's speech impairment was not caused by his swallowing disability but rather his service-connected thrombosis. To the extent that the Board herein denies a rating in excess of 10 percent, the preponderance of the evidence is against such an award and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial disability rating in excess of 10 percent for weakness, right lower extremity The Veteran asserts that he is entitled to a rating in excess of 10 percent for weakness, right lower extremity, residual of thrombosis, TIA, cerebral infarction (claimed as ischemic heart disease) associated with hypertensive vascular disease. The Veteran's weakness, right lower extremity, was evaluated under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Diagnostic Codes 8520 provides rating for paralysis of the sciatic nerve. Ratings of 10, 20, 40 and 60 percent are assigned for incomplete paralysis that is mild, moderate, moderately severe, and severe, with marked muscle atrophy, respectively. An 80 percent rating is assigned for 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. 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. In a February 2018 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran stated that loss of use of his right-side weakness resulted in an inability to dance, play sports, or climb stairs. The Veteran's right lower extremity weakness was most recently evaluated in a May 2021 Peripheral Nerve Conditions DBQ. At examination, the Veteran was diagnosed with right side weakness of the upper and lower extremities. The Veteran reported right side weakness since a stroke suffered in November 2015. He further reported the use of a cane for balance or weakness. Muscle strength testing revealed active movement against some resistance in elbow flexion, elbow extension, wrist flexion, wrist extension, grip, pinch, knee extension, ankle plantar flexion, and ankle dorsiflexion. The Veteran did not have muscle atrophy or pain attributable to peripheral nerve conditions. Deep tendon reflexes and sensation to light touch was normal. The examiner determined that the Veteran had moderate, incomplete paralysis of the right side sciatic nerve, external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, anterior crural nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve. April 2016 and December 2020 Central Nervous System and Neuromuscular Diseases DBQs note that the Veteran had mild weakness of the right lower extremity. The Veteran did not have muscle atrophy and deep tendon reflexes were normal. Based on the probative medical evidence of record, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's weakness, right upper extremity, is most accurately described as moderate, incomplete paralysis of the major extremity. Accordingly, entitlement to a 20 percent disability rating is warranted. A disability rating in excess of 20 percent is not warranted because the Veteran does not have moderately severe, incomplete paralysis of the right lower extremity. The Veteran did not have muscle atrophy, intermittent or constant pain attributable to peripheral nerve conditions. Deep tendon reflexes and sensation to light touch was normal. Additionally, the probative medical evidence of record does not indicate complete paralysis of the extremity The Board acknowledges the Veteran's statements that his weakness, right lower extremity, is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a disability evaluation in excess of 20 percent have not been met. The Board also acknowledges that the Veteran's VA treatment and private medical records note complaints of and treatment for weakness, right lower extremity. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the May 2021 examination findings are more probative of the degree of impairment. To the extent that the Board herein denies a rating in excess of 20 percent, the preponderance of the evidence is against such an award and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial disability rating in excess of 20 percent for weakness, right upper extremity The Veteran asserts that he is entitled to a rating in excess of 20 percent for weakness, right upper extremity, residual of thrombosis, TIA, cerebral infarction (claimed as ischemic heart disease) associated with hypertensive vascular disease. Diseases of the peripheral nerves are rated pursuant to a General Rating Formula for neurological conditions and convulsive disorders. Diseases of the peripheral nerves can range from 20 percent up to 70 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8512. Diagnostic Code 8512 provides a 20 percent disability rating for mild incomplete paralysis of the major extremity, a 40 percent disability rating for moderate incomplete paralysis of the major extremity, and a 50 percent disability rating for severe incomplete paralysis of the major extremity. Where there is complete paralysis, as manifested by all intrinsic muscles of the hand and some or all of flexors of the wrist and fingers, paralyzed (substantial loss of use of hand), a 70 percent disability rating is assigned for the major extremity. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In a February 2018 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran stated that loss of use of his right-side weakness resulted in an inability to dance, play sports, or climb stairs. The Veteran's right upper extremity weakness was most recently evaluated in a May 2021 Peripheral Nerve Conditions Disability Benefits Questionnaire (DBQ). At examination, the Veteran was diagnosed with right-side weakness of the upper and lower extremities. The Veteran reported right-side weakness since a stroke suffered in November 2015. He further reported the use of a cane for balance or weakness. The DBQ indicated that the Veteran is right hand dominate, which means that his right upper extremity is his major extremity. Muscle strength testing revealed active movement against some resistance in elbow flexion, elbow extension, wrist flexion, wrist extension, grip, pinch, knee extension, ankle plantar flexion, and ankle dorsiflexion. The Veteran did not have muscle atrophy or pain attributable to peripheral nerve conditions. Deep tendon reflexes and sensation to light touch was normal. The examiner determined that the Veteran had moderate, incomplete paralysis of the right-side radial nerve, median nerve, ulnar nerve, musculocutaneous nerve, circumflex nerve, and long thoracic nerve, upper radicular group, middle radicular group, and lower radicular group. April 2016 and December 2020 Central Nervous System and Neuromuscular Diseases DBQs note that the Veteran had mild weakness of the right upper extremity. The Veteran did not have muscle atrophy and deep tendon reflexes were normal. Based on the probative medical evidence of record, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's weakness, right upper extremity, is most accurately described as moderate, incomplete paralysis of the major extremity. Accordingly, entitlement to a 40 percent disability rating is warranted. A disability rating in excess of 40 percent is not warranted because the Veteran does not have severe, incomplete paralysis of the right upper extremity. The Veteran did not have muscle atrophy, intermittent or constant pain attributable to peripheral nerve conditions. Deep tendon reflexes and sensation to light touch was normal. Additionally, the probative medical evidence of record does not indicate complete paralysis of the major extremity. The Board acknowledges the Veteran's statements that his weakness, right upper extremity, is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a disability evaluation in excess of 40 percent have not been met. The Board also acknowledges that the Veteran's VA treatment and private medical records note complaints of and treatment for weakness, right upper extremity. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the May 2021 examination findings are more probative of the degree of impairment. (Continued on the next page) To the extent that the Board herein denies a rating in excess of 40 percent, the preponderance of the evidence is against such an award and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. B. CHATTERJEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.