Citation Nr: 22013503 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-44 357 DATE: March 9, 2022 ORDER Entitlement to an initial evaluation of 30 percent, but no higher, for adult onset fluency disorder (previously diagnosed as stuttering condition) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran has been having severe speech impairment since its onset in active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an initial evaluation of 30 percent, but no higher, for adult onset fluency disorder (previously diagnosed as stuttering condition) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.27, 4.114, Diagnostic Code 7299-7202 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to February 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO assigned a noncompensable initial evaluation (0 percent) for his service-connected adult onset fluency disorder (previously diagnosed as stuttering condition), effective April 18, 1984. See May 6, 2015 Rating Decision. The Veteran timely appealed the May 2015 rating decision to seek higher initial evaluation for his service-connected disability. The Board notes that the Veteran's speech disability has been evaluated under Diagnostic Code 8210 for paralysis of cranial nerves. In October 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matter is before the Board. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). The Board notes that the evidence of record shows the Veteran's severe speech impediment, which was documented and treated in service, has continued since his separation to the present. See e.g., April 1978 Service Treatment Record (the Veteran was admitted to Audiology and Speech Center for moderately severe secondary stuttering); November 1978 Dial-6 Boss Inquiry (the Veteran's severe stuttering caused him to be removed from a position which was responsible for personnel in a Combat Arms Platoon); February 2001 Social Work Note (the Veteran's speech defect was noted); January 2007 Notice of Disagreement (the Veteran's severe speech impediment led him to receive 18 months of speech therapy); December 2019 Cranial Nerves Diseases Disability Benefits Questionnaire (DBQ) (a severe level of difficulty in speaking was noted). During the October 2021 Board hearing, the Veteran testified that he has frequent noticeable stutter, and he tries to avoid speaking as much as possible. He also testified that being in stressful situations worsens his stutter, and he has been avoiding having jobs where speaking is involved. Under Diagnostic Code 8210, which is currently being applied to evaluate the Veteran's disability, a 10 percent evaluation is warranted for moderate incomplete paralysis of cranial nerves. 38 C.F.R. § 4.124a, Diagnostic Code 8210 (2020). A 30 percent evaluation is warranted for severe incomplete paralysis of cranial nerves and a maximum 50 percent evaluation is warranted for complete paralysis of cranial nerves. Id. As to the Veteran's paralysis of cranial nerves, a December 2019 VA examination revealed that the Veteran has moderate incomplete paralysis of cranial nerve IX (glossopharyngeal) and cranial nerve X (vagus) with attributable symptom of a severe level of difficulty in speaking. But see May 2017 Cranial Nerves Disease DBQ (the examiner indicated that the Veteran does not have any symptoms attributable to paralysis of cranial nerves). However, the Board notes that there are no specific rating criteria for adult onset fluency disorder or stuttering condition in General Schedule. Therefore, the Board will consider a rating by analogy for a Diagnostic Code that most accurately represents the Veteran's symptomatology. See 38 C.F.R. § 4.20 (2020). Here, the Board finds that the rating criteria under Diagnostic Code 7202 more accurately represents the Veteran's current symptomatology. Under Diagnostic Code 7202 for loss of tongue, a 30 percent evaluation is warranted for the disability with marked speech impairment. 38 C.F.R. § 4.114, Diagnostic Code 7202. A 60 percent evaluation is warranted for one-half or more loss of tongue, and a maximum of 100 percent evaluation is warranted for loss of tongue with inability to communicate by speech. Id. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the Diagnostic Code number is "built up" with the first two digits being selected from that part of General Schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. 38 C.F.R. § 4.27 (2020) Based on the evidence of record, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran has been having severe speech impairment since its onset in active duty service. Consequently, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to an initial evaluation of 30 percent, but no higher, for adult onset fluency disorder (previously diagnosed as stutter condition) is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.27, 4.114, Diagnostic Code 7299-7202 (2020). However, an initial evaluation in excess of 30 percent is not warranted here, as the evidence of record does not show that the Veteran has had complete paralysis of cranial nerves affecting his speech or speech impairment caused by a loss of one-half or more of his tongue. 38 C.F.R. §§ 4.114, Diagnostic Code 7202, 4.124a, Diagnostic Code 8210 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.