Citation Nr: 22013435 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-12 168 DATE: March 9, 2022 ORDER A disability rating greater than 30 percent for postural tremor, left hand, associated with Parkinsonism is denied. A disability rating greater than 20 percent for postural tremor, right upper extremity, associated with Parkinsonism is denied. FINDING OF FACT The evidence of record indicates that, for the entire claim period, the Veteran's bilateral upper extremity postural tremors did not cause severe incomplete paralysis of the median nerves. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 30 percent postural tremor, left hand, associated with Parkinsonism are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8615. 2. The criteria for a disability rating greater than 20 percent postural tremor, right upper extremity, associated with Parkinsonism are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8615. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from January 1982 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran and his spouse testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in November 2020, the Board found that rating reductions of the Veteran's low back and bilateral knee disabilities were improper. The Board then granted an increased rating for a left upper back scar, denied an increased rating for a chronic right great ingrown toenail, and granted entitlement to a total disability rating based on individual unemployability (TDIU). Lastly, the Board remanded the following issues for further development: (1) entitlement to a disability rating greater than 20 percent for a low back disability; (2) entitlement to increased disability ratings for a left knee disability; (3) entitlement to increased ratings for a right knee disability; (4) entitlement to a disability rating greater than 30 percent for postural tremor, left hand; (5) entitlement to a disability rating greater than 20 percent for postural tremor, right upper extremity; (6) entitlement to a disability rating greater than 10 percent for GERD; and (7) entitlement to a disability rating greater than 70 percent for bipolar II disorder. Following the Board's November 2020 decision and remand, a VA RO issued a rating decision in June 2021. In that decision, the RO: (1) increased the Veteran's low back disability rating to 40 percent, effective June 9, 2021; (2) increased the Veteran's bipolar II disorder rating to 100 percent, effective March 16, 2021; and (3) granted service connection for right and left lower extremity radiculopathy associated with the low back disability, assigning initial 20 percent ratings effective June 9, 2021. As these increases did not represent a total grant of the benefits sought on appeal for the entire claim period, the Veteran's low back and bipolar II disorder increased ratings claims remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Subsequently, in October 2021, the Board granted: (1) an increased 100 percent rating for bipolar II disorder, effective November 6, 2016; (2) an increased 40 percent rating for the low back, effective April 15, 2014; (3) separate 10 percent ratings for limitation of flexion of the right and left knees, effective April 15, 2014; (4) separate 10 percent ratings for right and left knee instability, effective February 18, 2020; (5) an increased 30 percent rating for GERD, effective February 18, 2020; and (6) service connection for Parkinsonism. The Board also denied (1) increased ratings for right and left lower extremity radiculopathy, and (2) increased ratings for limitation of extension of both knees. Lastly, the Board remanded the issues of entitlement to disability ratings greater than 30 percent and 20 percent for postural tremors of the left hand and right upper extremity, respectively, as they were identified as symptoms of the now service-connected Parkinsonism. In November 2021, the Agency of Original Jurisdiction (AOJ) issued a rating decision implementing the Board's October 2021 decision. The rating decision did not issue the minimum 30 percent rating for Parkinsonism pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8004. Rather, the AOJ appropriately issued separate ratings for individual chronic symptoms associated with Parkinsonism as these ratings combined exceeded the minimum 30 percent rating under Diagnostic Code 8004. In addition, in November 2021, the AOJ issued a supplemental statement of the case (SSOC) which denied increased ratings for the Veteran's upper extremity postural tremors. The case has once again returned to the Board for appellate review. Increased Ratings As indicated above in the Conclusions of Law section, the Board finds that (1) a rating greater than 30 percent for postural tremors of the left hand, and (2) a rating greater than 20 percent for postural tremors of the right upper extremity are not warranted in the instant case. Accordingly, the Veteran's claim is denied. In support of this determination, the Board first notes that the Veteran's upper extremity postural tremor ratings were assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8615representing neuritis of the median nerve. 38 C.F.R. § 4.123 defines neuritis and provides that it is "characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating." The regulation then indicates that neuritis is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. Id. Under Diagnostic Code 8615, 30 percent and 20 percent ratings are assigned, respectively, for moderate incomplete paralysis of the major (dominant) and minor (non-dominant) arms. 38 C.F.R. § 4.124a. Comparatively, maximum 50 and 40 percent ratings are assigned, respectively, for severe incomplete paralysis of the major and minor arms. Id. The evidence of record indicates that the Veteran's major arm is his left arm. See, e.g., October 2015 VA Central Nervous System and Neuromuscular Disease Examination Report. Moving to the evidence of record, the Board notes that the Veteran was provided two VA examinations addressing his upper extremity postural tremors during the claim period. Firstly, in October 2015, the Veteran reported that he worked as a biomedical equipment technician and stated that his daily tremors sometimes caused him to alter tasks due to fine motor challenges. The Veteran indicated that he was prescribed Mysoline for his tremors and that this medication somewhat improved his symptoms. After physically examining the Veteran, the October 2015 VA examiner first noted that there was no muscle weakness in the Veteran's upper extremities. The examiner then indicated that no muscle atrophy was present and that the Veteran's reflexes were normal. Lastly, the examiner stated that moderate bilateral hand and arm tremors were present and that these tremors would preclude occupations requiring fine motor skills for the majority of the occupation. The Veteran was then provided another VA examination in June 2021. On this occasion, the Veteran reported similar complaints as in October 2015, including that while he was still employed as a biomedical equipment technician, his tremors required him to occasionally change tasks due to reduced fine motor skills. The Veteran then described current symptoms of (1) uncontrolled jerking and shaking of the arms and hands at rest, with the left arm being worse than the right; (2) an inability to hold or grip items with the left hand; and (3) an overall weakness of both upper extremities. During muscle strength testing, bilateral elbow flexion, grip, and pinch all produced abnormal results of 3/5i.e., no movement against resistancewhile elbow extension, wrist flexion, and wrist extension produced results of 4/5i.e., less than normal strengthbilaterally. In addition, during reflex testing, brachioradialis was normal for both sides while biceps produced results of 3+i.e., increased without clonusbilaterally. No muscle atrophy of the upper extremities was displayed, and the examiner categorized the Veteran's muscle weakness of the bilateral upper extremities as moderate. Separate from the VA examination reports of record, the Board notes that, in January 2018, the Veteran reported tremors in both arms and hands to Dr. Milholland of Lake Cumberland Neurology Associates. During a physical examination, Dr. Milholland noted present tremors of the upper extremities, normal sensation to light touch, normal muscle strength, and 1+i.e., slight but definite present responsereflexes throughout. Lastly, Dr. Milholland provided diagnoses of essential tremor and unspecified Parkinsonism type. Lastly, the Board notes that, during the February 2020 hearing, the Veteran and his spouse provided testimony concerning the nature and severity of the Veteran's tremors. Specifically, the Veteran testified that his last full-time job was in 2017 and he believed that he could no longer perform even sedentary work as he no longer had hand dexterity. Board Hearing Tr. at 4-5. The Veteran's spouse then stated that the Veteran could not lift anything over 20 pounds. Id. at 7-9. In evaluating the severity of the Veteran's disabilities, the Board notes that, within the context of applying Diagnostic Code 8615, the terms "mild," "moderate," and "severe" are not defined. But, the Court of Appeals for Veterans Claims has held that in discussing the meaning of terms, the Board is permitted to consult with a dictionary. See Nielson v. Shinseki, 23 Vet. App. 56, 59 (2009) ("It is commonplace to consult dictionaries to ascertain a term's ordinary meaning."). In consulting a common dictionary, the Board notes that severe generally means "of a great degree" or "serious." Merriam-Webster's Collegiate Dictionary, 1140 (11th ed. 2003). In comparison, moderate means "tending toward the mean or average amount." Id. at 798. After reviewing the evidence of record, the Board concludes that, at no time during the appeal period, did the Veteran's service-connected upper extremity postural tremors produce impairment most analogous with severe incomplete paralysis of the median nerve. While the Board acknowledges the Veteran and his spouse's testimony concerning his loss of dexterity and inability to lift objects weighing over 20 pounds, during the October 2015 VA examination, the Veteran did not display any loss of muscle strength, diminished reflexes, or muscle atrophy. Similarly, while he did display reduced muscle strength and reflexes during the June 2021 examination, reflexes and strength were still present, and atrophy, which would be consistent with paralysis of a severe degree, was not identified. Relatedly, Dr. Milholland's observations in 2018 were consistent with the results of the October 2015 VA examination findings, indicating that the overall effects of the Veteran's postural tremors were not of a great degreei.e., not severe. As evidence of impairment analogous with severe incomplete paralysis is necessary for the assignment of increased 50 and 40 percent ratings under Diagnostic Code 8615 for the left hand and right upper extremity, respectively, the Board must deny the Veteran's claim. 38 C.F.R. § 4.124a. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.