BVA9502475 DOCKET NO. 91-36 239 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased evaluation for cerebellar degeneration, manifested by right leg ataxia, currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for cerebellar degeneration, manifested by left leg ataxia, currently evaluated as 20 percent disabling. 3. Entitlement to a total disability evaluation for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from October 1969 to March 1972. This appeal arose from a December 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The RO granted entitlement to a temporary total evaluation based on hospital treatment of cerebellar degeneration effective from October 3 through October 31, 1989; and evaluated separately bilateral lower extremity ataxia as a manifestation of cerebellar degeneration as 20 percent disabling respectively effective November 1, 1989. In a March 1990 rating decision, the RO denied entitlement to a total disability evaluation for compensation on the basis of individual unemployability. The Board of Veteran's Appeals (Board) remanded the veteran's case to the RO for further adjudicative development in December 1991. The RO affirmed the denial of entitlement to increased evaluations for cerebellar degeneration manifested by bilateral leg ataxia and a total evaluation for compensation on the basis of individual unemployability when it issued a rating decision in June 1994. The case has been returned to the Board for final appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his cerebellar degeneration manifested by bilateral leg ataxia is more disabling than currently evaluated, thereby warranting entitlement to increased evaluations. He further contends that his service-connected disabilities have rendered him unable to work, thereby warranting entitlement to a total disability evaluation for compensation on the basis of individual unemployability. It is requested that the Board consider additional development for the purpose of making a more informed decision as to unemployability by ascertaining the reasons for termination of the veteran's previous employment, associating his VA Vocational Rehabilitation Folder with the claims file, and conducting a social and industrial survey. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against grants of increased evaluations for cerebellar degeneration manifested by bilateral leg ataxia, and a total disability evaluation for compensation on the basis of individual unemployability. FINDINGS OF FACT 1. Cerebellar degeneration, manifested by right leg ataxia, is productive of disablement compatible with not more than moderate incomplete paralysis of the sciatic nerve. 2. Cerebellar degeneration, manifested by left leg ataxia, is productive of disablement compatible with not more than moderate incomplete paralysis of the sciatic nerve. 3. There were no exceptional or unusual circumstances present in the veteran's case that would have warranted its referral to the VA Director of the Compensation and Pension Service. 4. The service-connected disabilities of cerebellar degeneration manifested by bilateral leg ataxia and dysarthria, when evaluated in association with the veteran's educational attainment and occupational experience, have not been shown to render him unable to perform any type of substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular requirements for an evaluation in excess of 20 percent for cerebellar degeneration, manifested by right leg ataxia, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.20, 4.124(a), Diagnostic Code 8520 (1994). 2. The schedular requirements for an evaluation in excess of 20 percent for cerebellar degeneration, manifested by left leg ataxia, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.20, 4.124(a), Diagnostic Code 8520. 3. Failure of the RO to consider or to document its consideration of 38 C.F.R. § 4.16(b) constituted harmless error. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.16(b). 4. The requirements for a total disability evaluation for compensation on the basis of individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that his cerebellar degeneration manifested by bilateral leg ataxia has increased in severity and that he has been rendered unable to work because of his service-connected neurological disability. The Board is satisfied that as a result of the December 1991 remand of the appellant's case to the RO for further development, all relevant facts for the purposes of the present determination have been properly developed. Although it was requested on the appeal that the Board again remand the case to the RO for an explanation as to why his previous employment was terminated, association with the appellate record of his VA Vocational Rehabilitation folder, and accomplishment of a social and industrial survey, the Board is of the opinion that the evidentiary record is satisfactorily complete and no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). I. Entitlement to an increased evaluation for cerebellar degeneration, manifested by bilateral leg ataxia, each evaluated as 20 percent disabling. In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the appellant's cerebellar degeneration manifested by bilateral leg ataxia. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. A review of the service medical records discloses that the veteran was hospitalized for evaluation of neurologic symptomatology. He was diagnosed with diffuse cerebellar degeneration, probable spino-cerebellar type. An April 1972 VA neurological examination of the appellant concluded in a diagnosis of cerebellar degeneration manifested by ataxia. The examiner commented that in view of the fact that there was evidence of involvement of the motor neurons of the spine, there was a possibility that this condition may be the beginning of multiple sclerosis. In May 1972 the RO issued a rating decision granting entitlement to service connection for cerebellar degeneration manifested by ataxia which was assigned a 40 percent evaluation, and for dysarthria which was assigned a 10 percent evaluation. The claimant was hospitalized by VA with complaints of a worsening unsteady gait in January 1987. It was noted that he was treated for ataxia due to cerebellar vermis degeneration, with etiology noted as probably degenerative cerebellar disease, differential diagnosis trauma or Dilantin toxicity. The appellant was hospitalized by VA in April 1988 with complaints of chronic tremors with worsening over the past two to three months. Diagnostic studies concluded in a discharge diagnosis of cerebellar degeneration. At a June 1989 VA neurological examination, the veteran stated that he felt his balance coordination and tremors had continued to worsen progressively. He could not cite anything that may make him worsen during the day. He just sat down until the tremors went away. The appellant stated that most of the tremors were in his head and upper body. Occasionally he might feel them in his legs, but mainly the sensation of his legs began to give out on him, and he had to sit down. His legs had swollen, especially when going downstairs. He was unsteady on stairs and quite cautious. He denied any problems with swallowing, despite the speech impediment from incoordination. On cranial nerve examination there was some dysmetria on rapid bilateral eye movements. The motor/sensory portion of the face was intact. However, there was some slurring of speech associated with decreased rapid alternating movements of the tongue and throat. Motor sensory examination of the rest of the body showed slightly decreased tone in all four extremities with minimal proximal weakness in the upper and lower extremities, being 4+ out of 5 or 4 out of 5 in the deltoid hand solis. As the veteran was seated, there was a marked myoclonic tremor evident in the neck and upper body causing marked head jerking. This increased in amplitude during the more stressful course of the examination, or when attention was called to it and decreased when he was distracted or more relaxed. There was minimal resting and suspension tremor in both upper extremities, left greater than right; but there was a more prominent intention tremor in both upper extremities, left greater than right with a moderate decrease in rapid alternating movements and both upper extremities, left more than right. In the lower extremities there was a severe dysmetria on heel- knee-shin testing and decomposition of toe-tapping, left lower extremity more than right. The appellant was unable to stand on a base narrower than 10 to 12 inches and had a wide-based, unsteady gait. He was unable to tandem walk. Sensory examination was intact to pinprick, light touch, vibration and joint position sense. The deep tendon reflexes were symmetrically 1+ with downgoing toes. The diagnostic impression noted the veteran had evidence of a diffuse cerebellar degeneration affecting cerebellar hemispheres and midline cerebellum with components of myoclonus coming from the deep cerebellar nuclei. There had been laboratory studies in the past that were suggestive of multiple sclerosis, but they were never followed up. Further diagnostic studies were recommended. The appellant was hospitalized by VA in October 1989, for observation and evaluation of his increasing shaking episodes, and to rule out multiple sclerosis. A general physical examination included findings of 2+ pulses in the extremities with no clubbing, cyanosis, or edema. Cranial nerves IX and X disclosed a bilateral gag reflex. Cranial nerve XI showed a slight increase on the right as compared to the left. A motor examination showed 5/5 strength bilaterally for upper and lower extremities, with normal bulk and tone. Sensory examination was intact to light touch and pin prick. Deep tendon reflexes were as follows: biceps, 0; triceps 2+ on the right upper extremity, and 1+ on the left upper extremity. The knees were 1+ bilaterally and ankles were 2+ bilaterally. Toes were downgoing. The cerebellar examination was described as good. Finger to nose coordination disclosed positive Romberg. The gaits were unsteady with broad based gait. A computerized axial tomographic scan of the head disclosed only cerebellar degeneration. A magnetic resonance imaging disclosed normal size ventricles with positive cerebellar degeneration. An electroencephalogram showed no evidence of epileptic form changes. There was the absence of objective evidence of a seizure disorder. It was felt that his head tremor appeared to be functional and to stop when he was distracted and when he thought he was not being observed. The hospital discharge diagnoses were head tremor and cerebellar degeneration. An addendum to the above report shows that the veteran underwent evoked potential which showed normal latency of both eyes and no evidence compatible with multiple sclerosis. VA outpatient progress reports show the appellant was seen with complaints of headaches in September and October 1990. The veteran testified as to the disabling manifestations of his neurological disabilities at an RO hearing held in November 1990. He testified that if he remained seated for too long a time, he had a problem getting up. He had fallen on three occasions while walking. Approximately every two months his legs gave out on him. The appellant stated that he had not been as energetic as he used to be. Tremors and migraines were said to follow stressful situations. He testified that occasionally he drove a car. VA conducted a neurological examination of the claimant in January 1994. He recounted his history of concussion in service in 1971, followed by poor coordination. He stated that his head tremor had worsened in the last two years. He had also observed jerking of his head bilaterally, especially the upper body. Sporadic headaches still occurred and were described as severe requiring that he lie down in a dark room. Throbbing quality of pain occurred five times per month and was disabling for at least half an hour daily for each headache. The examiner noted that on his examination it appeared that the veteran's history was vague. On gait there was normal arm swing and no wide based typical cerebellar gait. There was no truncal or arm ataxia. Lateral to-and-fro head jerks were noted, especially with stress. On interview, it diminished if he was distracted during the examination. Speech was not typical for the usual dysarthria of a cerebellar degeneration. There was no nystagmus as one would expect in a cerebellar vermis abnormality. Cranial nerves were noted as normal. Visual fields were noted as normal. There was no hyperreflexia, but generalized hyperreflexia was present. Minimal weakness of the upper and lower extremities was noted. No anesthesia was present. Proprioception was normal in the distal lower extremities. The examiner summarized there was documentation of the veteran's having been involved in a motor vehicle accident in 1972, during which he was unconscious for 4 hours and required a 9 month hospitalization for unsteadiness and headaches. It was conceivable that he may have had brain stem and cerebellar ischemia at that time from the motor vehicle accident. The unsteadiness had persisted through the years and studies, especially in 1989, had demonstrated cerebellar degeneration on a computerized axial tomographic head scan and a magnetic resonance imaging scan. A positron emission tomography had also demonstrated impairment of the posterior fossa structures with hypometabolism, which again may be remnants of ischemia. The examiner noted there had been a question as to whether or not head jerks were functional or were myoclonic activity, and it was difficult to define either one by examination. Three electroencephalograms had not demonstrated any myoclonic seizure activity. There had been no definite evidence of multiple sclerosis. The examiner noted that he suspected brain stem and cerebellar trauma had been sustained in the 1972 motor vehicle accident with associated ischemia which would leave the veteran uncoordinated during ambulation. There was a possibility that the hand jerks were of a myoclonic nature from the deep cerebellar structures. The examiner noted that since he did not have the prior magnetic resonance imaging scans for review, he was again requesting another scan to see whether or not the cerebellar degeneration noted previously had remained the same or had worsened. In March 1994 it was reported that the veteran had failed to report for a magnetic resonance imaging. Cerebellar degeneration manifested by ataxia of each lower extremity is rated as 20 percent disabling respectively by analogy to moderate incomplete paralysis of the sciatic nerve under diagnostic code 8520 of the VA Schedule for Rating Disabilities. 38 C.F.R. §§ 4.20, 4.124(a), Diagnostic Code 8520. The next higher evaluation of 40 percent requires that moderately severe incomplete paralysis for each lower extremity be shown on examination. It has not. The most recent VA neurologic examination disclosed minimal weakness of the lower extremities. Not even a typical wide-based cerebellar gait was demonstrated on examination in January 1994. The veteran has undergone exhaustive diagnostic studies including a period of observation and evaluation in a VA hospital to properly assess the nature and extent of his neurological disease. The examination in January 1994 was in great detail. A seizure disorder was not found objectively. Neurologically the upper extremities showed no ataxia. Any ataxia affecting the lower extremities was not marked. The diagnostic studies including VA examination reports to date have provided no evidence of increased impairment of either lower extremity upon which to predicate assignment of increased evaluations of the lower extremities. No question has been presented as to which of two or more evaluations would more properly classify the severity of bilateral lower extremity ataxia. 38 C.F.R. § 4.7. Cerebellar degeneration has not rendered the veteran's disability picture unusual or exceptional in nature and has not been shown to markedly interfere with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards thereby precluding assignment of increased evaluations for each lower extremity on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The Board finds that no medical evidence is presently of record which would support grants of increased evaluations for cerebellar degeneration manifested by ataxia in the lower extremities with application of pertinent governing schedular criteria. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.124(a), Diagnostic Code 8520. II. Entitlement to a total disability evaluation for compensation on the basis of individual unemployability. The remaining issue for appellate consideration concerns whether the veteran's service-connected disabilities have rendered him unemployable for VA compensation purposes. It is the finding of the Board that they have not. In this regard, the Board observes that service connection has been granted for cerebellar degeneration, manifested by right leg ataxia, evaluated as 20 percent disabling; cerebellar degeneration, manifested by left leg ataxia, evaluated as 20 percent disabling; and dysarthria, evaluated as 10 percent disabling. The combined schedular evaluation is 50 percent. In a January 1991 application for increased compensation benefits based on unemployability, the veteran reported that he has two years of college, had become too disabled to work in 1972, and had had occupational experience in computer operation. On an earlier dated statement on file he reported having had experience at a service station and in counseling. Cerebellar degeneration of the lower extremities was discussed earlier. As to dysarthria, the veteran is rated as 10 percent disabled for moderate incomplete paralysis of the twelfth cranial nerve under diagnostic code 8212 of the VA Schedule for Rating Disabilities. The next higher evaluation of 30 percent requires a demonstration of severe incomplete paralysis of the twelfth cranial nerve. This has not been shown on examination. More specifically, when he was last examined by VA in January 1994, the veteran was observed to not even demonstrate typical speech for usual dysarthria in cases of cerebellar degeneration. In other words, his dysarthria was not shown to be observable, much less to have increased in severity. The Board is satisfied that the veteran's disabilities are correctly evaluated for purposes of determining whether unemployability exists. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The appellant's service-connected disabilities do not meet the percentage requirements set out in 38 C.F.R. § 4.16(a). The Board's evaluation of the evidentiary record does not permit a conclusion that there were any unusual or exceptional circumstances present in the veteran's case as to have warranted its referral to the VA Director of the Compensation and Pension Service. In other words, the veteran's occupational background is satisfactory as is his educational attainment. He is not shown to require an inordinate quantity of medication for his service-connected disabilities. Pain is not shown to constitute a significant factor with respect to his disabilities. The veteran's service-connected disabilities, when evaluated in association with his educational attainment and occupational backgrounds, are not shown to preclude all kinds of substantially gainful employment. The Board concludes that service-connected disabilities have not rendered the veteran unemployable for VA compensation purposes. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b). ORDER Entitlement to an increased evaluation for cerebellar degeneration, manifested by right leg ataxia, is denied Entitlement to an increased evaluation for cerebellar degeneration, manifested by left leg ataxia, is denied. Entitlement to a total disability evaluation for compensation on the basis of individual unemployability is denied. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.