Citation Nr: 0006743 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 92-20 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 50 percent for bipolar disorder. 2. Entitlement to a rating in excess of 30 percent for asthma with obstructive disease. 3. Entitlement to a rating in excess of 20 percent for sensory nerve entrapment of the right upper extremity. 4. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity. 5. Entitlement to a rating in excess or 10 percent for headaches. 6. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 7. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from December 1979 to August 1991. This case was previously before the Board of Veterans' Appeals (Board) in October 1994 at which time it was remanded for further development. Following that development, the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California assigned the following ratings, effective August 28, 1991, the date after the veteran's discharge from service: Bipolar disorder, 50 percent; asthma with obstructive disease, 30 percent; sensory nerve entrapment of the right upper extremity, 20 percent; peripheral neuropathy of the left upper extremity, 20 percent; headaches, 10 percent; peripheral neuropathy of the right lower extremity, 10 percent; and peripheral neuropathy of the left lower extremity, 10 percent. Thereafter, the case was returned to the Board for further appellate action. The issue of entitlement to a rating in excess of 50 percent for bipolar disorder is the subject of a remand at the end of this decision. FINDINGS OF FACT 1. All available evidence necessary for an equitable disposition of this appeal, other than the appeal for a higher rating for the service-connected bipolar disorder, has been obtained by the RO. 2. The veteran's asthma with obstructive disease, which requires daily inhalational therapy, is manifested primarily by excerbations more than one week apart with no more than moderate dyspnea between exertions and an FVC of 87.9 percent and an FEV1/FVC of 64 percent. 3. The veteran's sensory nerve entrapment of the right upper extremity, manifested primarily by a mild impairment of movement of the right hand and minimal sensory deficits, is productive of no more than mild incomplete paralysis. 4. The veteran's peripheral neuropathy of the left upper extremity, manifested primarily by minimal sensory deficits, is productive of no more than mild incomplete paralysis. 5. The veteran's headaches are manifested by less than characteristic prostrating attacks occurring an average once a month over the last several months. 6. The veteran's peripheral neuropathy of the right lower extremity, manifested primarily by sensory deficits, is productive of no more than mild incomplete paralysis. 7. The veteran's peripheral neuropathy of the left lower extremity, manifested primarily by sensory deficits, is productive of no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for asthma with obstructive disease have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.97, Diagnostic Code 6602 (1991)(as amended by 61 Fed. Reg. 46720 (1996) (now codified at 38 C.F.R. § 4.97, Diagnostic Code 6602 (1999)). 2. The criteria for a rating in excess of 20 percent for sensory nerve entrapment of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.124a, Diagnostic Code 8513 (1999). 3. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.124a, Diagnostic Code 8513 (1999). 4. The criteria for a rating in excess of 10 percent for headaches have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.124a, Diagnostic Code 8100 (1999). 5. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.124a, Diagnostic Code 8520 (1999). 6. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.124a, Diagnostic Code 8520 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims of entitlement to higher evaluations for her service-connected disabilities are plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service- connected disability generally is a well-grounded claim). Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the diagnostic codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected 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. 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 all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In an initial rating award, dated in January 1992, the RO in Winston Salem, North Carolina, granted entitlement to service connection for the disabilities at issue. As held in AB v. Brown, 6 Vet. App. 35, 38 (1993), "on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation." When an initial rating award is at issue, a practice known as "staged" ratings may apply. That is, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). I. Asthma At the outset of the veteran's claim, bronchial asthma was rated in accordance with 38 C.F.R. § 4.97, Diagnostic Code 6602 (1991). Under that code, a 30 percent evaluation was warranted for moderate impairment, manifested by rather frequent asthmatic attacks (separated by only 10 to 14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent rating was warranted for severe impairment, manifested by frequent attacks of asthma (one or more attack weekly) and marked dyspnea on exertion between attacks with only temporary relief by medication. In such cases, more than light manual labor was precluded. A 100 percent rating was warranted for pronounced impairment manifested by asthmatic attacks very frequently with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. In the absence of clinical findings of asthma at the time of the examination, a verified history of asthmatic attacks had to be of record. During the course of the appeal, VA issued changes with respect to the criteria for rating respiratory disability. 61 Fed. Reg. 46720 (1996) (now codified at 38 C.F.R. § 4.97, Diagnostic Code 6602 (1999)). Those changes were effective October 7, 1996, and were considered by the RO. The Board will consider the claim for an increased rating for asthma under both sets of regulations. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), VA O.G.C. Prec. Op. No. 11-97 (Mar. 25, 1997). Under the revised criteria for evaluating bronchial asthma, a 30 percent rating is warranted when the FEV-1 is 56- to 70-percent of predicted, or; the FEV-1/FVC is 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy is required, or; inhalational anti-inflammatory medication is required. A 60 percent rating is warranted when the FEV-1 is 40- to 55-percent of predicted, or; the FEV-1/FVC is 40 to 55 percent, or; at least monthly visits to a physician are required for the care of exacerbations, or; when intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are required. A 100 percent rating is for assignment when the FEV-1 is less than 40-percent of predicted, or; the FEV-1/FVC is less than 40 percent, or; when there is more than one attack per week with episodes of respiratory failure, or; when daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications are required. In the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97, Diagnostic Code 6602. The veteran reports frequent exacerbations of bronchial asthma necessitating treatment in the emergency room. The clinical records dating back to service, however, do not show the interval between attacks to be any less than 10 days, nor do they show any more than moderate dyspnea between attacks. Indeed, during the year prior to the veteran's separation from service, there is evidence of only 2 exacerbations (November and December 1990). Since service, the records show approximately 3 exacerbations (October 1995, December 1996, and March 1997) and no more than moderate dyspnea between attacks. As noted above, such infrequent attacks do not meet the former criteria for a rating in excess of 30 percent. As to the new criteria for rating asthma, the Board notes that the veteran requires daily inhalational therapy. Despite that therapy, recent (November 1997) pulmonary function tests show an FVC of 87.9 percent of predicted and an FEV1/FVC of 64 percent, prior to the administration of bronchodilators. Clearly, those findings do not meet the new criteria of a rating in excess of 30 percent. Moreover, there is no evidence since October 1996 that the veteran requires monthly visits to a physician for the treatment of asthma or that she requires intermittent courses of treatment with corticosteroids. Accordingly, there is also no basis for a rating in excess of 30 percent for asthma under the new criteria. In arriving at this decision, the Board notes that since service, the veteran's asthma has demonstrated essentially the same level of severity. Therefore, there is no requirement to apply the principle of staged ratings noted in Fenderson. II. Sensory Nerve Entrapment of the Right Upper Extremity and Peripheral Neuropathy of the Left Upper Extremity When rating the veteran's upper extremities, it is important to note whether the veteran is right-handed or left-handed; that is, it is necessary to determine which is the major upper extremity. Such a distinction is relevant to the assignment of the proper rating. 38 C.F.R. § 4.69. In this case, the record shows that the veteran is right- handed. The peripheral neuropathy of the veteran's upper extremities is rated in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8513. The following percentage ratings are warranted for the degree of severity indicated: Mild incomplete paralysis - 20 percent, major or minor upper extremity; moderate incomplete paralysis - 30 percent, minor and 40 percent, major; severe incomplete paralysis - 60 percent minor and 70 percent, major; and complete paralysis - 80 percent, minor and 90 percent, major. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with the application of the bilateral factor. 38 C.F.R. § 4.26 (1999). The service medical records show that the veteran was treated on several occasions for complaints of tingling and numbness in her upper extremities, the last time in May 1991. At that time, she complained of tingling and numbness from the hands to her elbows, bilaterally and an occasional weak grip. It was noted that the neurology service had not found anything and that despite her complaints, the sharp/dull sensation was intact in her hands and arms. There is no evidence that the veteran has been treated for peripheral neuropathy since her discharge from service. VA neurologic examinations in October 1991, September 1997, and March 1998, show continuing complaints of tingling and numbness in the upper extremities, most recently involving numbness in the 3rd to 5th fingers on the right. However, other than a mild problem with movement of the right hand and minimal sensory deficits to pinprick and touch in a glove distribution, there are no manifestations associated with the veteran's service-connected neurologic disabilities of either upper extremity. Indeed, the veteran reportedly has no difficulty with fine motor movements, and her muscle tone, bulk, strength are normal. Moreover, there is no evidence of any deficits in her reflexes, and her rapid alternating movements are good. Although semi-annual monitoring by the neurology service has been recommended, no treatment has been recommended. Inasmuch as the neurologic deficits in the veteran's upper extremities are mild and primarily sensory in nature, there is no schedular basis for a rating in excess of 20 percent for either upper extremity. The recorded complaints and clinical findings have been generally consistent since service, and the most recent examiner concluded that that condition had remained stable, most likely since 1991. Thus, there is also no basis for implementing the practice of staged ratings. III. Headaches The veteran's headaches are ratable by analogy to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under that code, a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted when there are characteristic prostrating attacks occurring an average of once a month over the last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks which are productive of severe economic inadaptability. The service medical records show that the veteran was last treated for headaches in September 1988. At that time, the assessment was tonsillitis versus pharyngitis. During the October 1991 VA examination, the veteran reported a several year history of severe global headaches, worse with tension. The relevant diagnosis was tension headaches. Although the veteran reports a history of headaches several times a week, the clinical record does not substantiate such frequency. VA outpatient treatment records, dated since service, show that she has complained of headaches on only three occasions (August 1993, November 1996, and January 1997). During a February 1997, ear, nose, and throat consultation, the diagnosis was rule out sinusitis. Moreover, the report of the September 1997 VA examination suggests that such headaches are neither disabling nor frequent. Absent any competent evidence of characteristic prostrating attacks occurring an average of once a month over the last several months, there is no schedular basis for a rating in excess of 10 percent. Again, the evidence shows that the frequency and severity of the veteran's headaches has been essentially stable. Accordingly, the principle of staged ratings is not for application. IV. Peripheral Neuropathy of the Lower Extremities Paralysis of the lower extremities is rated in accordance 38 C.F.R. § 4.124a, Diagnostic Code 8520, the code governing paralysis of the sciatic nerve. Under that code, a 10 percent rating is warranted for mild incomplete paralysis, and a 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve, while a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis in which the foot dangles and drops; there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or, very rarely, lost. The service medical records show that the veteran was treated for complaints of tingling and numbness of the lower extremities, the last time in May 1991. She reported such sensations on the bottoms of her feet and the tops of her toes and perspiration in the same area. During a medical board examination in May and June 1991, a history was noted of peripheral neuropathy of both feet, etiology unknown, dating back to 1982. The medical board stated that it was not incapacitating. Since service, the veteran has not been treated for peripheral neuropathy of either lower extremity. During the VA examinations in October 1991, September 1997, and March 1998, she continued to report intermittent tingling and numbness in the lower extremities, at least, by history. Although she demonstrates mild sensory deficits in her feet and legs, she maintains good strength and motor function, and there is no evidence of any deficits in her reflexes or coordination. Indeed, there is no evidence of more than mild peripheral neuropathy, and none of the examiners have so found. Accordingly, there is no schedular basis for a rating in excess of 10 percent for either lower extremity. The recorded complaints and clinical findings have been generally consistent since service, and the most recent examiner concluded that that condition had remained stable, most likely since 1991. Thus there is also no basis for implementing the practice of staged ratings. V. Extraschedular Considerations The Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the veteran's service-connected asthma with obstructive disease, nerve entrapment of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, or headaches. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). There is, however, no documentation of work missed by the veteran or of termination from employment, mutual or otherwise, because of any of the foregoing disabilities. Moreover, there is no evidence that she has required frequent hospitalization for any of those disabilities. In essence, the record shows that the manifestations of that disability are those contemplated by the current evaluations. It must be emphasized that disability ratings are not job-specific. They represent as far as can practicably be determined the average impairment in earning capacity as a result of diseases or injuries encountered incident to military service and their residual conditions in civilian occupations. 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. Absent evidence to the contrary, the Board finds no reason for referral of this case to the Director of VA Compensation and Pension purposes for a rating outside the regular schedular criteria. ORDER Entitlement to a rating in excess of 30 percent for asthma is denied. Entitlement to a rating in excess of 20 percent for sensory nerve entrapment of the right upper extremity is denied. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity is denied. Entitlement to a rating in excess or 10 percent for headaches is denied. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. REMAND Finally, the veteran seeks entitlement to a rating in excess of 50 percent for her service-connected psychiatric disorder, currently identified as bipolar disorder. In particular her representative maintains that she is unemployable due to that disability. At the outset of the veteran's claim, bipolar disorder was rated in accordance with 38 C.F.R. § 4.132, Diagnostic Code 9206 (1990). During the course of the appeal, VA issued changes with respect to the criteria for rating mental disorders. 61 Fed.Reg. 52695-52702 (1996) (now codified at 38 C.F.R. § 4.130 (1999)). Those changes were effective November 7, 1996. Under the new regulations, bipolar disorder is rated in accordance with 38 C.F.R. § 4.130, Diagnostic Code 9432. The RO has correctly considered the claim for a higher evaluation under both sets of regulations. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), VA O.G.C. Prec. Op. No. 11-97 (Mar. 25, 1997). Outpatient treatment records show that the veteran has been followed for her psychiatric disability through the VA medical center (MC) in Los Angeles. There are indications that there may have been a change in diagnosis with respect to that disorder. 38 C.F.R. § 4.13 (1999). The last record of such treatment, dated in April 1997, indicates that the veteran was scheduled for further psychiatric care. The evidence dated since service shows variously that the veteran has been employed as a clerk/typist/receptionist at USDA since 1992 or 1994 (see, e.g., VA Form 21-2545's, dated in June 1996 and November 1997); that her psychiatric disability is productive of severe industrial impairment and that she has been employed on a part-time basis (see, e.g., VA examination report, dated in September 1997); and that she is unemployed and/or unemployable (see, e.g., VA examination report, dated in November 1996 and VA Form 21- 2545, dated in November 1997). The veteran's employment records have not been associated with the claims folder. In light of the foregoing, the Board is of the opinion that additional development of the record is necessary prior to further appellate consideration. Accordingly, the case is remanded to the RO for the following actions: 1. The RO should request the veteran to provide the names, addresses, and approximate dates of treatment or examination, for all health care providers who may possess additional records relevant to the issue of entitlement to a higher rating for her service-connected psychiatric disability. After obtaining any necessary authorization, the RO should request copies of all indicated records not currently on file directly from the providers. This should include, but not be not limited to, reports of psychiatric outpatient treatment at the Los Angeles VAMC, dated since April 1997. The RO should request that the veteran also provide any additional relevant medical records she may possess. Failures to respond or negative replies to any request should be noted in writing and associated with the claims folder. 2. The RO should request that the veteran provide the names and addresses and dates of employment for all employers she has had since service. After acquiring all necessary authorization from the veteran, the RO should contact all past and present employers (including specifically the U.S.D.A.) and request copies of any records associated with time lost or other job-related difficulty associated with her service-connected psychiatric disability. Such documents should include, but are not limited to, medical records; attendance records, including reasons for absences; performance reports; reports of disciplinary action; counseling statements; client/customer letters; reports of workman's compensation claims or claims for other disability benefits; reports of vocational rehabilitation or training; and reports of state and/or union involvement. If the employer does not have such documents, the RO should request that the employer provide a statement on business letterhead stationary addressing the foregoing concerns. Failures to respond or negative replies to any request should be noted in writing in the claims folder. 3. The RO should also schedule the veteran for a psychiatric examination by an examiner who has not seen her previously. The purpose is to determine the severity of her service- connected psychiatric disability, currently identified as bipolar disorder. All indicated tests and studies should be performed, and any indicated consultations should be scheduled. The claims folder must be made available to the examiner so that the medical history may be reviewed. The examiner should indicate whether there has been any change in diagnosis of the service-connected psychiatric disability. 38 C.F.R. § 4.13. With respect to each of the symptoms identified in the new criteria for evaluating mental disorders, the examiner should indicate whether such symptom is a symptom of the veteran's service-connected psychiatric disorder. To the extent possible, the manifestations of the veteran's service-connected psychiatric disorder should be distinguished from those of any other psychiatric disorder found to be present. The examiner should provide a global assessment of functioning score (GAF) based upon the service-connected disorder and provide an explanation of the significance of the score assigned. The examiner should also provide an opinion concerning the degree of social and industrial impairment resulting from that disorder, to include whether it renders the veteran unemployable. The rationale for all opinions expressed should be provided. 4. When the requested actions have been completed, the RO should undertake any other indicated development and then readjudicate the issue of entitlement to a rating in excess of 50 percent for the veteran's service- connected psychiatric disability. In so doing, the RO should consider the November 1996 changes in the criteria for rating mental disorders. It should also consider whether the principle of "staged" ratings is applicable. Fenderson. If the benefits sought on appeal are not granted to the veteran's satisfaction, she and her representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if otherwise in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of the claim for a rating in excess of 50 percent for her service-connected psychiatric disability. The veteran need take no action until she is notified. It must be emphasized, however, that she does have the right to submit any additional evidence and/or argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-373 (1999). U. R. POWELL Member, Board of Veterans' Appeals