Citation Nr: 22014231 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-49 148 DATE: March 11, 2022 ORDER An initial 10 percent rating is granted for left side loss of automatic movements (such as blinking, leading to fixed gaze; typical Parkinson's facies), subject to the law and regulations governing the award of monetary benefits. An initial 10 percent rating is granted for right side loss of automatic movements (such as blinking, leading to fixed gaze; typical Parkinson's facies), subject to the law and regulations governing the award of monetary benefits. Entitlement to initial rating in excess of 20 percent prior to November 24, 2020, and in excess of 30 percent thereafter, for service-connected left upper extremity tremors to include bradykinesia/slowed motion and muscle rigidity/stiffness due to Parkinson's disease is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. REFERRED The issue of entitlement to service connection of bilateral impairment of the ninth glossopharyngeal cranial nerve was raised in the November 2020 VA examination and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's left side loss of automatic movements has been manifested by moderate incomplete paralysis; it is not shown to be manifested by severe incomplete or complete paralysis. 2. Throughout the period on appeal, the Veteran's right side of loss automatic movements has been manifested by moderate incomplete paralysis; it is not shown to be manifested by severe incomplete or complete paralysis. 3. The Veteran is right-hand dominant; his left upper extremity is his minor (non-dominant) extremity. 4. For the period prior to November 24, 2020, the Veteran's left upper extremity tremors had been manifested by no more than mild incomplete paralysis; from November 24, 2020, the Veteran's left upper extremity tremors have been manifested by no more than moderate incomplete paralysis. 5. Although requested to do so, the Veteran has not completed and returned a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability; the evidence otherwise of record is insufficient for full and proper adjudication of his claim for a TDIU. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, for left side of loss automatic movements have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8207 (2021). 2. The criteria for an initial rating of 10 percent, but no higher, for right side of loss automatic movements have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8207. 3. The criteria for an initial rating in excess of 20 percent prior to November 24, 2020, and in excess of 30 percent thereafter, for service-connected left upper extremity tremors have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8513 (2021). 4. The issue of entitlement to a TDIU has been abandoned. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.158, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1966 to November 1968, to include service in Vietnam. He also had service in the Air Force from May 1981 to September 1997. His decorations include the National Defense Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in May 2019, when it was remanded to the AOJ for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In October 2021, the AOJ found that the issue of the Veteran's entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) was on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the AOJ denied a TDIU and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Entitlement to an initial compensable rating for left side loss of automatic movements 2. Entitlement to an initial compensable rating for right side loss of automatic movements The Veteran contends that his service-connected bilateral loss of automatic movements, as a result of his Parkinson's disease, warrants a higher compensable rating. The AOJ granted service connection for bilateral loss of automatic movements and assigned an initial noncompensable rating under Diagnostic Code (DC) 8207. A March 2021 rating decision increased the rating to 10 percent effective November 24, 2020. Under DC 8207, for paralysis of the seventh (facial) cranial nerve, a 10 percent rating is warranted for moderate incomplete paralysis, a 20 percent rating is warranted for severe incomplete paralysis, and a 30 percent rating is warranted for complete paralysis, dependent upon the relative loss of innervation of facial muscles. 38 C.F.R. § 4.124a, DC 8207. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than apply 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 terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All of the evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board does note, for reference and illustrative purposes, that the definitions for "mild" include not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. Turning to the evidence of record, the Veteran was afforded a VA examination in connection with his claim in November 2014. The examiner noted the Veteran's Parkinson's disease diagnosis (as of May 2014). The examiner also noted a mild stooped posture, mild loss of automatic movements (such as blinking, leading to fixed gaze; typical Parkinson's facies), mild tremors of the left upper extremity, and complete loss of smell. The Veteran underwent a Parkinson's Disease Disability Benefits Questionnaire (DBQ) in November 2020. The examiner confirmed a diagnosis of Parkinson's disease. The Veteran's dominant hand is the right hand. Motor manifestations due to Parkinson's Disease or its treatment include mild stooped posture, moderate balance impairment, moderate bradykinesia or slowed motion, moderate loss of automatic movements, and moderate speech challenges, there was also moderate muscle rigidity and stiffness of the upper extremities and severe muscle rigidity and stiffness of the lower extremities. The Veteran was afforded a VA examination regarding cranial nerves disease in November 2020 as well. The examiner diagnosed bilateral loss of automatic movements, and noted cranial nerves I, II, VII, VIII, and IX impacted. The Board notes that cranial nerve VII relates to the facial nerve. Cranial nerve IX relates to glossopharyngeal, but the AOJ has not service connected the Veteran for impairment of the ninth glossopharyngeal cranial nerve. As noted above, as the AOJ has not considered that this matter in the first instance, it is being referred to the AOJ for appropriate action. The examiner indicated mild bilateral muscle strength testing of the facial nerve. The examiner also indicated moderate incomplete paralysis of the bilateral facial nerve. The examiner opined that the Veteran's cranial nerve condition made it unable for him to work at all. The above summarized evidence shows that throughout the appeal period, the Veteran's motor manifestations due to Parkinson's disease involved bilateral loss of automatic movements. The November 2020 examination specifically found that the Veteran's impairment on facial cranial nerves was best described as moderate incomplete paralysis, which is compatible with assignment of a 10 percent rating under DC 8207. Notably, the November 2014 VA examination did not specifically examine the Veteran's cranial nerves. Consequently, resolving all reasonable doubt in favor of the Veteran, the Board is assigning an initial 10 percent rating for both left side and right side loss of automatic movements. However, as detailed above, VA examiners throughout the claim period have not found more than moderate, incomplete paralysis of cranial nerve VII. Therefore, a higher 20 percent rating for bilateral loss of automatic movements is not warranted. In sum, for reasons stated, an initial disability rating of 10 percent, but no higher, for both left side and right side loss of automatic movements is warranted. In arriving at this conclusion, the Board has considered the doctrine of reasonable doubt. However, as there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a rating in excess of 10 percent for bilateral loss of automatic movements is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to an initial rating in excess of 20 percent prior to November 24, 2020, and in excess of 30 percent thereafter, for service-connected left upper extremity tremors The Veteran seeks a higher initial rating for left upper extremity tremors, and a rating in excess of 30 percent from November 24, 2020. He contends, in essence, that the severity of his condition is more than "moderate." The tremors of the Veteran's left upper extremity were previously evaluated pursuant to the criteria found at 38 C.F.R.§ 4.124a, Diagnostic Codes (8004-8510). Pursuant to the RO's August 2021 rating decision, the Veteran's left upper extremity tremors were rated under DC 8513, to capture all radicular groups. Under that diagnostic code, a 20 percent evaluation is assigned for mild incomplete paralysis of all radicular groups in the major or minor extremity. Moderate incomplete paralysis warrants a 40 percent evaluation for the major extremity, and a 30 percent evaluation for the minor extremity. Severe incomplete paralysis warrants a 70 percent evaluation for the major extremity, and a 60 percent evaluation for the minor extremity. With complete paralysis of all radicular groups in the major extremity, a 90 percent evaluation is assigned, and an 80 percent evaluation is assigned for the minor extremity. Here, the record reflects the Veteran is right-hand dominant. As such, his left upper extremity is his "minor" (non-dominant) extremity. As noted above, the terms "mild," "moderate," and "severe" are not defined in the Schedule. Furthermore, the Board also acknowledges that VA's Adjudication Manual, M21-1, III.iv.4.N.4.c (November 16, 2017) discusses the terminology in 38 C.F.R. § 4.124a, DCs 8510-8730. The Manual indicates with regard to "mild": As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes. In general, look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. The Manual indicates with regard to "moderate": Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The Manual indicates with regard to "severe": In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). Prior to November 2017 revisions, VA's Adjudication Procedures Manual M21-1, Part III, Subpart iv, Chapter 4, § G(4)) defined "mild" incomplete paralysis as demonstrating subjective symptoms or diminished sensation; "moderate" incomplete paralysis as featuring the absence of sensation confirmed by objective findings; and "severe" incomplete paralysis as featuring more than sensory findings (such as atrophy, weakness, and diminished reflexes). In June 2016, VA amended the M21-1 "to further clarify the intent of VA's policy," and the relevant portion of the M21-1 manual included the following: Important: This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. The United States Court of Appeals for Veterans Claims held in Miller v. Shulkin, 28 Vet. App. 376, 380 (2017), that "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." The M21-1 is not binding on the Board. DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"). Nevertheless, it does provide useful guidance in defining these terms, particularly if the Veteran demonstrates impairment consistent with higher rating(s) than currently in effect. Stated another way, the Board will look to see if there are findings that would warrant a higher rating under the M2-1 provisions, but will not deny the benefit sought on appeal if those provisions are not satisfied. Turning to the evidence in this case, the record reflects that the Veteran was diagnosed with Parkinson's in May 2014. He noted tremors in his left hand and a noticeable feeling in his left leg. Private treatment notes indicate the presence of persistent left-sided tremors and stiffness with a classic shuffling gait and irritability/combative behavior consistent with Parkinson's disease. See May 2014 Private Treatment Note. On a VA Parkinson's exam in November 2014, as noted above, it was noted that the Veteran had a mild stooped posture, mild loss of automatic movements (such as blinking, leading to fixed gaze; typical Parkinson's facies), mild tremors of the left upper extremity, and complete loss of smell. In his March 2015 notice of disagreement, the Veteran reported that his Parkinson's disease had started to affect his right side, resulting in whole body muscle spasms. He reported problems with leg stiffness and an off-balance gait, indicating a worsening of the disease. A September 2017 letter by the Veteran indicated further problems with speech, hallucinations, headaches, and nightmares, though a progression of disease as to left upper extremity was not mentioned. The Veteran underwent another Parkinson's disease examination in November 2020. As noted above, motor manifestations due to Parkinson's disease or its treatment include mild stooped posture, moderate balance impairment, moderate bradykinesia or slowed motion, moderate loss of automatic movements, and moderate speech challenges, there was also moderate muscle rigidity and stiffness of the upper extremities and severe muscle rigidity and stiffness of the lower extremities. The Veteran suffered from severe tremors of the left upper extremity as well. An additional peripheral nerves examination was conducted in May 2021. The examination noted tremors of the hands. No pain or paresthesias or numbness was reported of the upper extremities. Muscle strength of the upper extremities were also all normal. Reflex and sensory examinations of the upper extremities were normal. An August 2021 addendum opinion clarified that the Veteran did not report symptoms involving the upper extremities and there were no abnormal findings on examination involving the upper extremities that would suggest peripheral neuropathy. Following review of the record, the Board finds that the Veteran's left upper extremity tremors have been manifested by symptoms that more nearly approximate "mild" incomplete paralysis for the period prior to November 24, 2020, and "moderate" incomplete paralysis for the period from November 24, 2020. Prior to November 24, 2020, the Veteran's left upper extremity tremors were described as mild in the November 2014 VA examination. Although the Veteran had conveyed that his Parkinson's disease had increased in severity following his initial diagnosis, his lay assertions had not conveyed a left upper extremity tremors that were more than mild. From November 24, 2020, the Veteran's overall impairment of the left upper extremity were moderate in severity. Although the November 2020 examination report showed that the Veteran had "severe" tremors of the left upper extremity, the same examination showed that the impairment of the left upper extremity was moderate in terms of muscle rigidity and stiffness. Furthermore, the May 2021 peripheral neuropathy examination shows that the Veteran did not complain of pain, numbness, or paresthesias/dysesthesias in that extremity; that muscle strength testing was normal; that reflex exam was normal; that sensory exam was normal. For all of the foregoing reasons, the Board finds that ratings in excess of 20 percent prior to November 24, 2020, and in excess of 30 percent thereafter for left upper extremity tremors are not warranted. Accordingly, the evidence is persuasively against the claim for an increased rating. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to a rating in excess of 20 percent prior to November 24, 2020, and in excess of 30 percent thereafter for left upper extremity tremors is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to a TDIU VA will grant TDIU benefits when the evidence shows that the Veteran is precluded, by reason of service-connected disability, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran asserted in his November 2020 examination that he was no longer able to work due to the manifestations of Parkinson's disease. In August 2021, in accordance with the VA's duties to notify and assist, the RO sent the Veteran a VA Form 21-8940 in order to obtain the information needed to adjudicate his entitlement to a TDIU. See August 2021 correspondence. To date, he has not completed and returned the form or provided the equivalent information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and to identify the treatment he has received for the disabilities at issue. He is also asked to supply information about his employment, including dates when his disabilities affected full-time employment, the date he last worked full-time, and the date he became too disabled to work. The form further requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether he has attempted to obtain employment since he became too disabled to work. Although the record contains some information regarding the Veteran's employment history, he has not provided the information necessary for full and proper adjudication of his entitlement to a TDIU. The evidence does not completely reflect, for example, his educational and occupational history. The Board is presented with an insufficient evidentiary record, made so by his failure to cooperate in completing the VA Form 21-8940 or providing the equivalent information. Under the circumstances, proper adjudication of the matter on the merits is not possible. The duty to assist is not a one-way street. A veteran may not passively wait for assistance when his cooperation is needed for evidentiary development critical to a claim for VA benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). When evidence requested in connection with a claim for increase is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158(a). Because the evidence of record is insufficient to decide the TDIU issue, and the Veteran did not respond to the August 2021 correspondence from the AOJ, the issue of his entitlement to a TDIU is deemed abandoned. The appeal must be denied. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.