Citation Nr: 23027136 Decision Date: 05/07/23 Archive Date: 05/07/23 DOCKET NO. 17-29 933 DATE: May 7, 2023 ORDER Prior to October 12, 2018, a rating in excess of 20 percent for polymyositis is denied. Since October 12, 2018, a 40 percent rating, but no higher, for right upper extremity neuropathy due to polymyositis is granted. Since October 12, 2018, a 30 percent rating, but no higher, for left upper extremity neuropathy due to polymyositis is granted. Since October 12, 2018, a 10 percent rating, but no higher, for right lower extremity neuropathy due to polymyositis is granted. Since October 12, 2018, a 10 percent rating, but no higher, for left lower extremity neuropathy due to polymyositis is granted. Since January 28, 2020, a 30 percent rating, but no higher, for difficulty concentrating due to muscle pain and spasms related to polymyositis is granted. REMANDED Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to October 12, 2018, the Veteran experienced only occasional mild muscular pain in the upper extremities related to his polymyositis. 2. Since October 12, 2018, the Veteran has experienced moderate incomplete paralysis of all radicular groups of the upper extremities and mild incomplete paralysis of the femoral nerves (including hip pain) in the lower extremities. 3. Since January 28, 2020, the Veteran has experienced difficulty concentrating due to his polymyositis. 4. The Veteran's additional reported symptoms such as an occasional rash lasting less than a day, occasional nausea, and occasional night sweats do not result in additional functional impairment. 5. The Veteran has been diagnosed with degenerative changes of the cervical spine which further contribute to his muscle and nerve pain in the upper extremities but has not been identified as having been caused or aggravated by polymyositis. 6. The symptoms attributed to the Veteran's polymyositis are clearly distinguishable from the symptoms of his cervical spine degenerative changes. CONCLUSIONS OF LAW 1. Prior to October 12, 2018, a rating in excess of 20 percent for polymyositis is denied. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5021, 4.124, 4.124a, DC 8513. 2. Since October 12, 2018, the criteria for a 40 percent rating, but no higher, for right upper extremity neuropathy due to polymyositis have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.3, 4.7, 4.124, 4.124a, DC 8513. 3. Since October 12, 2018, the criteria for a 30 percent rating, but no higher, for left upper extremity neuropathy due to polymyositis have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.3, 4.7, 4.124, 4.124a, DC 8513. 4. Since October 12, 2018, the criteria for a 10 percent rating, but no higher, for right lower extremity neuropathy due to polymyositis have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.3, 4.7, 4.124, 4.124a, DC 8526. 5. Since October 12, 2018, the criteria for a 10 percent rating, but no higher, for left lower extremity neuropathy due to polymyositis have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.3, 4.7, 4.124, 4.124a, DC 8526. 6. Since January 28, 2020, the criteria for a 30 percent rating, but no higher, for difficulty concentrating due to muscle pain and spasms related to polymyositis have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.102, 4.3, 4.7, 4.130, General Rating Criteria for Mental Disorders. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to October 1989. The case is on appeal from a February 2015 rating decision which continued the Veteran's 20 percent rating for polymyositis. In a November 2021 rating decision, the Veteran's 20 percent rating for polymyositis was increased to 40 percent effective October 21, 2021, to reflect the severity of neuropathy in the right upper extremity. Therein, a 30 percent rating for left upper extremity neuropathy and 10 percent ratings for right and left lower extremity neuropathy were granted, all effective October 21, 2021. The Board will consider each of these ratings in assessing the Veteran's polymyositis. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). In a January 2023 rating decision, a separate 10 percent rating for tinnitus which onset with polymyositis during service was also granted effective January 27, 2015, the date on which the current claim for an increased rating for polymyositis was received. As the Veteran is already in receipt of the highest schedular rating, the Board will not discuss the Veteran's tinnitus further in assessing the severity of his polymyositis. 38 C.F.R. § 4.87, DC 6260; see also 38 C.F.R. § 3.400(o)(2). The issue of entitlement to TDIU is also on appeal as part and parcel of the increased rating claim for polymyositis. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board previously remanded the claim in March 2019, September 2021, March 2022, and September 2022 for new VA examinations to explore the severity of the Veteran's polymyositis. The Board is satisfied that its prior remand directives have been fulfilled and will address the merits of the polymyositis rating in this decision. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.? The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.? 38?U.S.C. §?1155.??Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.? 38?C.F.R. §?4.1.??? Where 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.??When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.? 38?U.S.C. §?5107(b); 38?C.F.R. §§?3.102, 4.3.??? 1. Entitlement to a rating in excess of 20 percent for right upper extremity neuropathy due to polymyositis prior to October 21, 2021, and in excess of 40 percent thereafter The Veteran is in receipt of ratings for his polymyositis for neuropathy in each extremity. Additionally, he claims that he experiences pain in his back, neck, and right hip that is related to his polymyositis. The Veteran's upper extremity disabilities are rated under DC 8513, which provides for ratings of all radicular groups.? For the dominant extremity, a 20 percent rating is assigned for mild incomplete paralysis, a 40 percent rating is assigned for moderate incomplete paralysis, a 70 percent rating is assigned for severe incomplete paralysis, and a 90 percent rating is assigned for complete paralysis.? 38?C.F.R. §?4.124a, DC 8513.? For the non-dominant extremity, a 20 percent rating is assigned for mild incomplete paralysis, a 30 percent rating is assigned for moderate incomplete paralysis, a 60 percent rating is assigned for severe incomplete paralysis, and an 80 percent rating is assigned for complete paralysis.? Id.? For the upper extremities, combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. 38?C.F.R. §?4.124a, Diseases of the Peripheral Nerves Note. The lower extremities are rated under DC 8526, which assigns ratings based on impairment of the anterior crural (femoral) nerve. A 10 percent rating is assigned for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 30 percent rating for severe incomplete paralysis, and a 40 percent rating for complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.? 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.? A July 2014 VA treatment record notes myopathy in the left arm. In August 2014, the Veteran reported to a VA clinician having flares of cramping in the right side of his back, left forearm, left arm, and left shoulder. However, the Veteran was still active, working out in the gym for a half an hour every day. In December 2014, the Veteran reported left shoulder upper arm cramps for a few seconds. Chronic pain in the left trapezius, deltoid, and triceps was noted. No typical muscle wasting or tenderness was noted. The Veteran was first afforded a VA examination of his polymyositis in February 2015. On examination, muscle strength was normal throughout the upper and lower extremities. No abnormalities or functional impairment was noted. In his March 2015 notice of disagreement, the Veteran stated that his pain level had increased in the last year. A June 2015 VA treatment record noted that the Veteran's polymyositis had been stable for five years without the need for steroid treatment, but that pain in the right forearm was coming back. In July 2015, the Veteran noted complaints of right arm pain, weakness, and fatigue for the past three months. An August 2015 VA treatment record notes that the Veteran is a body builder. On examination in 2015, full strength was noted without atrophy. The Veteran also noted that he was able to work out without increased pain or fatigue. In November 2015, the Veteran noted that he was able to bench press 250 pounds and had worked in his yard shoveling rocks on the day of his previous examination. The Veteran noted that the disease had gone into remission and questioned if he really ever had polymyositis. A new examination was afforded to the Veteran in July 2016. Less than normal strength was noted in the right wrist flexion and extension. Muscle strength was otherwise normal. No further abnormalities or functional impairment was noted. In his May 2017 VA Form 9, the Veteran provided general information about polymyositis as a disease. In addressing the severity of his own disability, the Veteran stated that his condition was becoming worse after a period of time in remission as evidenced by his increased creatine phosphokinase level and muscle pain. An October 2018 VA treatment record notes that the Veteran had a normal gait and no swelling, tenderness, or decreased range of motion of the small joints of the hands, wrists, elbows, shoulders, hips, knees, or ankles. Muscle strength was normal in the upper and lower extremities. The Veteran also reported having a rash; however, no rash was noted on examination. In March 2019, the Board remanded the claim to afford the Veteran a VA examination of his polymyositis to ensure that the proper orthopedic examinations had been conducted. In July 2019, the Veteran reported having right hip pain and weakness as well as night sweats for four weeks which were symptoms he experienced when first diagnosed with polymyositis. It was also noted that the Veteran is an avid weightlifter but stopped working out when symptoms started. His symptoms did not change after he stopped working out. Testing in July 2019 showed that the Veteran had chronic left upper extremity radiculopathy and left carpal tunnel syndrome. In August 2019, the Veteran noted having left upper back pain and spasm worse with movement that onset after moving stones and landscaping over the weekend. In November 2019, it was noted that the Veteran had degenerative changes in the cervical spine which have further contributed to poor mechanics and potentially added to postural changes. Tightness in the pectoralis along with job duties have encouraged a forward head and rounded shoulder which adds stress to the cervical spine. Degenerative changes along with local inflammatory responses were noted as the driver of his upper extremity radicular symptoms. The Veteran was afforded a new VA examination of his polymyositis in December 2019. Muscle strength was normal, and no functional impairment was identified. In January 2020, the Veteran reported having neck pain and pain in the left biceps and thumb. In January 2020, the Veteran applied for retirement from his Federal Government job due to disabilities, listed as polymyositis and dyslexia. In the development of his retirement application, the Veteran indicated he had difficulty concentrating due to pain. In an August 2020 letter, the Veteran's doctor stated that the Veteran believes his polymyositis was affecting his ability to concentrate at work due to pain and tinnitus. In November 2020, the Veteran reported that having any recent muscle weakness or pain. A December 2020 functional capacities evaluation noted that the Veteran's poly myositis affects his left-hand grip strength and dexterity, left hip ranges of motion, and prolonged sitting. The Veteran reported having trouble holding things and dropping things. The Veteran could sit, stand, or walk for 30 minutes and did well on the elliptical. Grip strength was reduced in the left hand and the Veteran had difficulty with left-hand fine manipulation. Range of motion was normal in right hip flexion, in knee flexion and extension, and right shoulder. Left hip flexion was reduced to 110 degrees and the hamstring was raised to only 75 degrees. Left shoulder flexion was to 165 degrees. The Veteran was able to work in a standing position. In February 2021, it was noted that the Veteran did demonstrate functional limitation particularly with lifting and left-handed dexterity. However, the Veteran tolerated sitting and typing well. Further cognitive complaints related to dyslexia were not explored. A February 2021 VA occupational therapy report notes that the Veteran was limited to standing and sitting for 50 minutes. The Veteran reported that his cramping and weakness is constant and came back with a vengeance over the past two years due to stress at work. He noted some weakness lifting in the left shoulder, left elbow, left hip flexion, and left knee. There was no limitation in the right extremities. The Veteran had limitations with lifting and left-handed dexterity but good sitting and typing tolerances. In March 2021, the Veteran reported that he was no longer going to the gym due to the pandemic but was using an elliptical machine at home for 45 minutes every other day. In September 2021, the claim was again remanded because no orthopedic examination had been conducted. The Veteran was afforded another VA examination of his polymyositis in October 2021. Polymyositis was noted as being productive of occasional bilateral weakness, pain, and fatigue. Muscle strength was 4/5-less strength than normal-throughout both upper and lower extremities. Functional impairment was noted as great difficulty typing, concentrating, and sitting for more than 30 minutes. Stress and fatigue made it very difficult to work consistently. For the peripheral nerves, mild intermittent pain and paresthesias/dysesthesias was noted in each extremity. Deep tendon reflexes and sensation to light touch was normal. Mild incomplete paralysis of the upper radicular group, lower radicular group, and femoral nerve was noted bilaterally. In January 2022, the Veteran stated that his polymyositis has drastically affected his employment and stated that his treating physician stated that his medical condition is impacting his ability to perform his essential job duties and that other clinicians had found that there was no recommendation for a reasonable accommodation for the chronic nature of his condition. In January 2022, the Veteran was afforded another VA examination of his polymyositis. Mild constant pain was noted in each extremity, and mild numbness was noted in the upper extremities. Muscle strength in the extremities was normal. Sensation to light touch was normal, except in the hands/fingers where it was decreased at the dorsal and palmar aspects. Mild incomplete paralysis of the lower radicular group was noted. He also noted having a sporadic rash that disappears by the end of the day and a spiking fever 5-6 times per day. On examination in December 2022, the Veteran's right and left hip range of motion was normal. No flare-ups of pain were reported, and no functional impairment was noted by the examiner. The examiner found that there was no right hip condition present. In support, the examiner noted that December 2022 examination report as well as a functional capacity examination which showed that the Veteran was capable of doing stairs, up and down 12 and 9 steps, step over step without railing or difficulty, squat, crouch, and walked 1618 feet in six minutes. The examiner also noted that the Veteran's muscle strength was normal in the lower extremities in 2019. The Board finds that, prior to October 12, 2018, a rating in excess of 20 percent for polymyositis is not warranted. Prior to this date, the Veteran reported having occasional flare-ups of cramping and muscular pain in the forearms and shoulders. For instance, in December 2014, the Veteran described the cramps in his left shoulder and upper arm as intense pain lasting a few seconds. Even if the Veteran did report in March 2015 that his pain had significantly increased, on examination there was no abnormality in muscle strength and physicians described his polymyositis as being stable and in remission. In fact, in November 2015 the Veteran reported being able to bench press 250 pounds and that he doubted he even had polymyositis and that he was able to accomplish yard work, such as shovel rocks. Although the Veteran provided the Board with information regarding the symptoms of polymyositis in May 2017, the evidence does not show that he experienced functional impairment warranting a rating in excess of 20 percent or additional ratings for the upper or lower extremities. Even if the Veteran's creatine phosphokinase level increased, this alone does not represent an increase in functional impairment. Rather, the Veteran generally was an active individual with very occasional muscle cramping which did not result in any impairment noted on examination. Since October 12, 2018, the Veteran's polymyositis worsened as to warrant ratings for moderate incomplete paralysis of all radicular groups in the upper extremities and mild incomplete paralysis of the femoral nerve in the lower extremities. In October 2018, the Veteran noted joint and muscle pain described as a sharp, stabbing pain in his upper and lower extremities, nausea, and fatigue. He also believed that job-related anxiety was making his symptoms worse. By July 2019, the Veteran complained of pain and weakness in the hips and night sweats and stopped working out. In the left upper extremity, there was median distal latency and reduced median palmar sensory distal latency was prolonged and amplitude reduced. Weakness, especially with left-hand grip has also been noted. However, higher ratings are not warranted because the Veteran has only reported subjective symptoms such as mild or moderate pain and numbness with the only weakness on examination found in his left-hand grip. For the upper extremities, if there were severe incomplete paralysis present, the Board would expect significant weakness and impairment found on examination, or at least severe pain typically being present. For the lower extremities, if there were moderate incomplete paralysis present, the Board would expect impairment to deep tendon reflexes and sensation or some degree of muscle weakness. However, as these symptoms are not reflected in examination, and the Veteran's symptoms, in particular for the lower extremities, have been subjective, the Board finds that a rating in excess of 40 percent for the right upper extremity, 30 percent for the left upper extremity, and 10 percent for each lower extremity are not warranted. The Veteran has also reported a number of other symptoms related to his polymyositis. For instance, the Veteran is already service connected for tinnitus. The Veteran has reported an occasional rash which generally disappears within a day. A further remand for a VA examination of the rash would not result in additional useful information in rating the claim because the rash appears unpredictably and only on occasion and disappears quickly. The Veteran did not report using any medication for the rash and has not reported the extent to which rash covered his body. Thus, the Board finds that no additional functional impairment has resulted from the occasional and quickly resolving rash. The Veteran has also occasionally reported having night sweats, nausea, fatigue, and fever. However, these symptoms were only reported on a few occasions and have not been reported to clinicians and examiners except when a flare-up first begins. These symptoms do not warrant additional ratings such as under 38 C.F.R. § 4.114, DC 7346 for persistently recurrent epigastric distress, or under 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders for chronic sleep impairment. The Veteran has reported having difficulty concentrating at work due to pain. The Veteran's impaired concentration is similar to mild memory loss, described as forgetting names, directions, and recent events as difficulty concentrating makes one's ability to focus on details and recent events more difficult. Thus, a 30 percent rating for the Veteran's difficulty concentrating due to polymyositis pain is warranted from January 28, 2020, the date on which his disability application submitted to the Office of Personnel Management (OPM) on which he noted that muscle spasms contribute to difficulty concentrating. As this was the first indication that the Veteran had difficulty concentrating, the rating will be assigned from that date. See Swain v. McDonald, 27 Vet. App. 219 (2015). The Veteran has also reported having hip pain. However, the Veteran was afforded a VA examination of his hips in December 2022. No additional hip disorder or pain causing functional impairment of the hip joints was noted. Although some loss of left hip range of motion was noted on examination in December 2020, the limitation to range of motion would not warrant the assignment of a compensable rating for the hip. 38 C.F.R. § 4.71a, DCs 5251, 5252, 5253. Further, the Veteran is already in receipt of ratings for the lower extremity which contemplate muscular pain reported as part of polymyositis, and there have been no reports of hip pain stemming from painful motion in the hip joint itself rather than muscular hip pain already contemplated by the ratings assigned. Thus, the Board finds that the ratings for lower extremity impairment of the femoral nerve contemplates the hip pain reported by the Veteran. It was also noted that the Veteran had back spasms and cervical spine degenerative changes, though these disorders were not noted to be part of his polymyositis or caused or aggravated by polymyositis. Rather, cervical degenerative changes were discussed by clinicians as a separate and unrelated condition which might be contributing to polymyositis symptoms for which ratings have been assigned but were not related to or part of polymyositis. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, back spasms are listed under the General Ratings Formula for Diseases and Injuries of the Spine. The Board does not find that additional VA examinations or ratings are needed. In summary, a 40 percent rating for the right upper extremity, a 30 percent rating for the left upper extremity, and 10 percent ratings for the lower extremities are granted from October 12, 2018, but no earlier. On October 12, 2018, the Veteran reported that his polymyositis symptoms had returned, such as muscle stiffness, ringing in the ears, and a rash. This is the earliest ascertainable date on which polymyositis symptoms had worsened. See Swain, supra. Thus, higher ratings are not available before October 12, 2018. A separate rating for difficulty concentrating will also be assigned from January 28, 2020. Higher and additional ratings for polymyositis are otherwise denied. REASONS FOR REMAND Entitlement to TDIU is remanded. As a result of this decision, the Veteran will be in receipt of a combined 80 percent rating for his polymyositis since October 12, 2018. In his January 2022 VA Form 21-8940, the Veteran reported that he last worked full-time August 3, 2021 and became too disabled to work May 1, 2019. Records from OPM reveal that a decline in the Veteran's performance was noted in an October 25, 2019 Progress Review Worksheet and a 2019 Performance Appraisal. In OPM documentation, it was noted that the Veteran's polymyositis and dyslexia contributed to his inability to work. The Veteran, however, is not service connected for dyslexia. Thus, a remand is warranted to attempt to differentiate the functional impairment of the Veteran's dyslexia from the functional impairment of the Veteran's service-connected disabilities. See Mittleider v. West, 11 Vet. App. 181 (1998). The matter is REMANDED for the following action: Ask an examiner to differentiate the effects of the Veteran's service-connected polymyositis which causes pain and difficulty concentrating from his nonservice-connected dyslexia. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. George 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.