Citation Nr: 22017928 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 13-32 789 DATE: March 27, 2022 ORDER Entitlement to a rating in excess of 50 percent prior to February 12, 2013, and a rating in excess of 70 percent beginning February 12, 2013 for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to a rating in excess of 10 percent for chronic conjunctivitis and dry eye syndrome is dismissed. Entitlement to an effective date prior to January 24, 2012 for the grant of a total disability rating based on individual unemployability (TDIU) is dismissed. Entitlement to an earlier effective date prior to January 24, 2012 for the grant of basic eligibility to DEA benefits under Chapter 35 is dismissed. Entitlement to an initial rating of 20 percent, but no higher, prior to November 10, 2011, for ulnar nerve neuropathy of the left upper extremity is granted. Entitlement to an initial of 20 percent, but no higher, prior to November 10, 2011, for neuralgia of the left lower extremity is granted. Entitlement to a rating of 10 percent, but no higher, for asthma and PPD positive (positive tuberculosis test) is granted from October 15, 2010 to September 26, 2012. Entitlement to a compensable rating prior to October 15, 2010 for asthma and PPD positive is denied. Entitlement to a rating in excess of 30 percent beginning September 26, 2012 is denied. FINDINGS OF FACT 1. On February 7, 2022, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran, through his authorized representative, that a withdrawal of the following appeals is requested: entitlement to a rating higher than 50 percent prior to February 12, 2013 and higher than 70 percent as of February 12, 2013 for posttraumatic stress disorder (PTSD); entitlement to a rating higher than 10 percent for chronic conjunctivitis and dry eye syndrome; entitlement to an earlier effective date prior to January 24, 2012 for the grant of a total disability rating based on individual unemployability (TDIU); and entitlement to an earlier effective date prior to January 24, 2012 for the grant of basic eligibility to DEA benefits under Chapter 35. 2. Prior to November 10, 2011, the Veteran's ulnar neuropathy of the left extremity is manifest by moderate incomplete paralysis of the minor extremity 3. Prior to November 10, 2011, The Veteran's neuralgia of the left lower extremity affecting his sciatic nerve is manifest by moderate incomplete paralysis. 4. From October 15, 2010 to September 26, 2012, the Veteran was prescribed intermittent use of a bronchodilator. Prior to October 15, 2010, the Veteran's pulmonary function testing (PFT) indicated a FEV1/FVC of 81 percent, with no evidence of intermittent inhalational or oral bronchodilator therapy. After September 26, 2012, the Veteran's PFTs reveal FEV-1s and FEV-1/FVCs higher than 55 percent predicted and the Veteran did not attend monthly visits to a physician for required care of exacerbations, or require intermittent courses of systemic (oral or parenteral) corticosteroids. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to a 20 percent rating prior to November 10, 2011, for ulnar nerve neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8516. 3. The criteria for entitlement to a 20 percent rating prior to November 10, 2011, for neuralgia of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.124a DC 8720. 4. The criteria for entitlement to a 10 percent rating for asthma and PPD positive From October 15, 2010 to September 26, 2012, have been met; however, the criteria for a compensable rating prior to October 15, 2010 and higher than a 30 percent rating after September 26, 2012 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, DC 6731-6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from February 1984 to December 2007. These appeals originate from February 2021 and January 2011 rating decisions. This claim was previously remanded in June 2020. The Board notes that the Veteran, through counsel in a February 2022 written correspondence, has sought to limit the scope of review to the period prior to the date of his total disability based on individual unemployability (TDIU), so prior to November 10, 2011. 1. The claims for entitlement to a rating higher than 50 percent prior to February 12, 2013 and higher than 70 percent as of February 12, 2013 for posttraumatic stress disorder (PTSD); entitlement to a rating higher than 10 percent for chronic conjunctivitis and dry eye syndrome; entitlement to an earlier effective date prior to January 24, 2012 for the grant of a total disability rating based on individual unemployability (TDIU); and entitlement to an earlier effective date prior to January 24, 2012 for the grant of basic eligibility to DEA benefits under Chapter 35 are dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. By letter dated February 2022, the Veteran, through his authorized representative, submitted a statement stating that he wished to withdraw the claims of entitlement to a rating higher than 50 percent prior to February 12, 2013 and higher than 70 percent as of February 12, 2013 for PTSD; entitlement to a rating higher than 10 percent for chronic conjunctivitis and dry eye syndrome; entitlement to an earlier effective date prior to January 24, 2012 for the grant of a total disability rating based on individual unemployability (TDIU); and entitlement to an earlier effective date prior to January 24, 2012 for the grant of basic eligibility to DEA benefits under Chapter 35. This statement was signed and submitted by the Veteran's attorney and the Veteran was included as a carbon copy. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204(b)(3). The Board finds that the Veteran's withdrawal is unambiguous, was in writing, included the name of the Veteran, the file number and a statement that the appeal is withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). Thus, as there remains no allegation of error of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to the above-mentioned issues, and they are dismissed. 2. Entitlement to an initial rating of 20 percent, but no higher, prior to November 10, 2011, for ulnar nerve neuropathy of the left upper extremity is granted. The Veteran contends he is entitled to a rating higher than 10 percent for his neuropathy of the left upper extremities. The Veteran is currently rated under Diagnostic Code (DC) 8516 for paralysis of the ulnar nerve. He is rated at 10 percent prior to November 10, 2011, and 20 percent thereafter. However, as previously noted, the Veteran has sought to limit the Board's review to the period prior to November 10, 2011; therefore, the only issue left on appeal is whether the Veteran is entitled to a rating higher than 10 percent prior to November 10, 2011. As noted, paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8516. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. A 50 percent is warranted for complete paralysis of the ulnar nerve, minor and 60 percent, major; the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). During the period prior to November 10, 2011, the Veteran was provided a VA examination in February 2010. Treatment records from a TBI evaluation conducted in January 2010 indicate the Veteran was experiencing significant pain on his left side due to nerve damage, including his right arm and hand. The evaluation also indicated the Veteran had difficulty engaging in physical activities and grasping with his left hand. Impaired hand grip was noted. During his February 2010 VA examination, the Veteran was noted to have trouble with buttons due to hand numbness and weakness; Formal motor strength testing was also noted to be contrary to the Veteran's functional ability (possibly indicating malingering); however, given other treatment notes indicating the Veteran's difficulty with motor strength during this review period, the Board affords the Veteran the benefit of the doubt and assigns this February 2010 VA examination probative value. The examiner, at this time, also noted sensory decrease to temperature on the ulnar side of the hand. Mild chronic motor changes of cervical radiculopathy were also noted and at the time found unrelated to the Veteran's service-connected ulnar neuropathy. The Board notes that the Veteran is now also service connected for degenerative disc disease of the cervical spine with spondylosis; therefore, it will consider this additional symptom as a part of the Veteran's evaluation for peripheral neuropathy of the left upper extremity. Following a review of the evidence, medical and lay, the Board finds that the disability is primarily manifested by mild motor dysfunction and moderate sensory disturbance, along with moderate pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by more severe symptoms associated with severe incomplete paralysis such as muscle atrophy and trophic changes. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis of the minor extremity, given the evidence shows the Veteran's right hand is his dominant hand. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence of record persuasively weighs in favor of a 20 percent rating, but no higher, prior to November 10, 2011 for the Veteran's left upper extremity ulnar nerve neuropathy. 3. Entitlement to an initial rating of 20 percent, but no higher, for neuralgia of the left lower extremity is granted prior to November 10, 2011. The Veteran contends that he is also entitled to a higher rating for his neuropathy of the lower extremity because he believes the pain and numbness he experiences as a result of his neuropathy of the left lower extremity and its resultant functional impairment warrants a higher rating prior to November 10, 2011. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.). The Veteran has been evaluated under DC 8720 for neuralgia of the sciatic nerve at 10 percent since January 1, 2008. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. During an evaluation in January 2010, the Veteran reported pain on his entire left side (including his left lower extremity), making it difficult to engage in physical activities. The examiner at this time also noted the Veteran had impaired balance in his left lower extremity, which was attributed to his neuralgia and resulting left-sided weakness. During a September 2013 VA examination, the Veteran again reported left side numbness and weakness and that he felt like his foot was asleep. He also reported constantly radiating pain down his lateral thigh and that he felt weaker than he had previously. Knee and ankle strength was found to be normal during the examination, with no muscle atrophy, normal reflexes, but decreased sensation testing was noted in the Veteran's left lower leg, thigh, and toes. No trophic changes were observed. Upon examination, the Veteran was also found to have some chronic but no acute denervation. The examiner further noted that the Veteran's formal motor strength was contrary to his functional ability and that his shoe wear patterns gave the appearance of malingering. The Board affords this statement less probative value, as the Veteran has consistently reported left-sided weakness in his left lower extremity, and this is documented multiple times both in his other VA examinations, as well as statements to the Board. In December 2020 the Veteran again reported left-sided weakness and that he was unable to walk more than a half a mile. His ankle and great toe extension strength were noted to be decreased, but he was, again, not noted to have muscle atrophy. Reflexes were found to be normal, as were the results of his sensory examination. The Veteran was found to have a positive straight leg test, however, which indicates pain due to radiculopathy. He was also found to have moderate paresthesias and numbness in his left lower extremity and overall moderate radiculopathy of his left lower extremity. Based on the above, the Board finds that the disability is primarily manifested by sensory disturbance and pain resulting in moderate incomplete paralysis. The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by a more severe impairment of motor functions, trophic changes, more severe sensory disturbance, loss of reflexes, muscle atrophy or complete paralysis. Accordingly, the Board finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence of record supports a 20 percent rating for the Veteran's neuralgia of the left lower extremity. 4. Entitlement to a 10 percent rating for asthma and PPD positive (positive tuberculosis test) is granted from October 15, 2010 to September 26, 2012; and entitlement to a compensable rating prior to October 15, 2010 is denied. The Veteran contends he is entitled to a higher evaluation for his inactive tuberculosis, manifested currently as asthma, prior to September 26, 2012. As noted previously, the Veteran, through counsel, has sought to limit the scope of this issue to the period prior to September 26, 2012. The Veteran further contends that he is entitled to a compensable rating for his asthma during this period due to his severe persistent cough, which existed prior to the date his evaluation for his asthma increased. The Board acknowledges both treatment records and lay statements have established the Veteran's cough existed prior to the effective date of his 30 percent rating, which begins September 26, 2012. However, for the following reasons, the Veteran is not entitled to a 30 percent rating prior to September 26, 2012. The Board does find, however, that the Veteran was prescribed a bronchodilator for periodic use on October 15, 2010, which warrants a higher 10 percent rating. All respiratory and pulmonary disabilities are evaluated under the schedule of ratings for respiratory system. The schedule provides the Diagnostic Code (DC) 6731 under the General Rating Formula for rating inactive pulmonary tuberculosis. Per DC 6731, depending on the specific clinical findings, the inactive tuberculosis residuals are rated as interstitial lung disease, restrictive lung disease, or as chronic bronchitis. In this case, the Veteran's active tuberculosis sustained in service has fortunately remained inactive ever since service and manifests as a restrictive lung disease, namely, asthma. Asthma is evaluated under the DC 6602, based on the following rating criteria. A 10 percent is assigned for FEV-1 (Forced Expiratory Volume in one second) of 71 to 80 percent predicted, or FEV-1/FVC (ratio of Forced Expiratory Volume in one second to Forced Vital Capacity) of 71 to 80 percent, as based on a pulmonary function testing (PFT), or based on intermittent inhalational or oral bronchodilator therapy. 38 C.F.R. § 4.97, DC 6602. For rating purposes based on the PFT results, the post-bronchodilator values are used, unless the pre-bronchodilator results are normal or greater than the post-bronchodilator results. 38 C.F.R. § 4.96(d)(4)-(5). In those cases, the pre-bronchodilator values are used for rating purposes. Id. In cases where the evaluation is based on the PFTs and there is a disparity between the different PFT data, the test result the examiner states most accurately reflects the disability level is to be used. See 38 C.F.R. § 4.96(d)(6). If the criteria for at least 10 percent is not met, a noncompensable rating is assigned. 38 C.F.R. § 4.31. A 30 percent is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or based on daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. Id. A 60 percent is assigned for FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or based on at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Id. For rating purposes under DC 6602 based on corticosteroid therapy, the regulations unequivocally distinguish "systemic (oral or parenteral) corticosteroids" that affect the body as a whole from the inhaled medications, such as budesonide inhaler, having a localized effect in the lungs. See Johnson v. Shulkin, 862 F.3d 1351, 1355 n.2 (Fed. Cir. 2017). A total rating is assigned for FEV-1 less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or based on more than one attack per week with episodes of respiratory failure, or daily use of systemic high-dose corticosteroids (oral or parenteral) or immuno-suppressive medications. Id. As to a compensable evaluation prior to October 15, 2010, treatment records and the Veteran's October 2010 VA examination, pulmonary function testing (PFT) indicated an FEV1/FVC of 81 percent, with no evidence of intermittent inhalational or oral bronchodilator therapy. Chest x-rays performed at the time were normal. No dyspnea on exertion was noted and no treatment with bronchodilator was noted. Overall, treatment records and the Veteran's VA examination do not show a FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, as based on a PFT or intermittent inhalational or oral bronchodilator therapy. The Board does note, however, that the Veteran was prescribed albuterola type of bronchodilatorfor intermittent use on October 15, 2010 (so, after his VA examination, which specifically noted he was not using a bronchodilator). Consequently, a rating of 10 percent is warranted beginning October 15, 2010 until September 26, 2012. The Board notes that a rating higher than 10 percent is unwarranted prior to September 26, 2012, as the Veteran does not have PFTs indicating FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent. Treatment records also indicate he does not require daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. After September 26, 2012, treatment records are silent for PFTs showing FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent. Similarly, the record is silent for any indication that the Veteran attended at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Consequently, a 10 percent rating is warranted from October 15, 2010 to September 26, 2012. A compensable rating is not warranted prior to October 15, 2010, and a rating higher than 30 percent is unwarranted after September 26, 2012. Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.