Citation Nr: 0001561 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-04 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for heart disease with hypertension, status post myocardial infarction, currently rated as 30 percent disabling. 2. Entitlement to a rating in excess of 20 percent for residuals of a cerebrovascular accident involving the right upper extremity. 3. Entitlement to a rating in excess of 10 percent for residuals of a cerebrovascular accident involving the right lower extremity. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from October 1962 to October 1966 and included prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. That rating decision, in part, confirmed and continued a 30 percent rating for heart disease with hypertension, status post myocardial infarction which had been in effect since January 1994. A 20 percent rating for residuals of a cerebrovascular vascular accident (CVA) with right arm and leg weakness, which had been in effect since April 1992, was redesignated as "status post right MCA distribution cerebral infarct (parietal lobe) with right arm weakness with superimposed diabetes mellitus peripheral neuropathy," evaluated 20 percent effective May 1997, and "status post right MCA distribution cerebral infarct (parietal lobe) with right lower extremity weakness with superimposed diabetes mellitus peripheral neuropathy," evaluated 10 percent effective May 1997. On the title page of this decision, the Board has noted the issues simply as "entitlement to a rating in excess of 20 percent for residuals of a cerebrovascular accident involving the right upper extremity," and "entitlement to a rating in excess of 10 percent for residuals of a cerebrovascular accident involving the right lower extremity." The RO also denied a total rating for compensation on the basis of individual unemployability due to service-connected disabilities The issues of an increased rating for heart disease with hypertension, status post myocardial infarction, and entitlement to a total rating for compensation on the basis of individual unemployability due to service-connected disabilities will be discussed in the REMAND section below. In March 1998 arguments to the Board, the veteran raised the issue of entitlement to service connection for seizures secondary to the veteran's service-connected cerebrovascular accident. A report of VA hospitalization dated November 8, 1996, shows treatment for seizures and an impression of "Secondary to old cerebrovascular accident." This issue has not been the subject of a rating decision by the RO and is not properly before the Board at this time. It is referred to the RO for action deemed appropriate. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal for an increased rating for residuals of his cerebrovascular vascular accident involving weakness of the right upper and lower extremities. 2. The veteran's cerebrovascular accident residuals involving the right upper extremity is manifested by weakness that is no more than mild. 3. The veteran's cerebrovascular accident residuals involving the right lower extremity is manifested by weakness that is no more than mild. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a cerebrovascular accident involving the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Codes 8008, 8510 (1999). 2. The criteria for a rating in excess of 10 percent for residuals of a cerebrovascular accident involving the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Codes 8008, 8520 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. His assertion that the service- connected residuals of his cerebrovascular accident, manifested by a right upper and lower extremity weakness, have increased in severity is plausible. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999) (Schedule), which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part or system in self support of the individual. 38 C.F.R. § 4.10 (1999). When a disability is encountered that is not listed in the rating schedule it is permissible to rate under a closely related disease or injury in which the functions affected, the anatomical location and the symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). Generally, all disabilities, including those arising from a single disease entity, are rated separately with the resulting ratings being combined. 38 C.F.R. § 4.25 (1999). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (1999). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (where a veteran with a service- connected facial injury sought an increased rating, the veteran's disability was to be properly assigned compensable ratings under separate codes for disfigurement, tender and painful scars and muscle injury). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1999). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 for the higher rating. 38 C.F.R. § 4.7 (1999). Factual Background The veteran was originally granted service connection for hypertension in a February 1968 rating decision. In August 1991, he was admitted to a VA hospital with a complaint of right-sided weakness in the upper and lower extremities, right facial droop, and slowness of speech. His history was significant for hypertension since age 22 and non-insulin dependent diabetes mellitus for the past seven years. The diagnosis was left cerebrovascular accident. A February 1992 rating decision granted service connection for the cerebrovascular accident as directly due to the service- connected hypertension. In November 1996, the veteran was hospitalized following five seizures which began during mid day, and lasted 2-3 minutes every 10 minutes. He had transient, left-sided postictal paralysis. He was prescribed Dilantin and had no further seizures. Physical examination noted no clubbing or cyanosis of the extremities. There was 5/5 strength in the upper and lower extremities. There was a down-going plantar reflex on the right toe and equivocal plantar in the left foot. Reflexes were 0 in the ankles, 1+ knees, 1+ biceps, triceps, and brachial radialis. Neurologically, his mental status was normal, he was alert and oriented. Cranial nerves 2-12 showed that a left mild facial droop was present. A January 1997 neurology clinic record shows a history of cerebrovascular accident "with complete resolution; no new [cerebrovascular accident] was found in [November] 1996." No further seizures were noted since November 1996, although he did complain of lapses of memory. In May 1997, the veteran filed his most recent claim for an increased rating. He indicated that he had been to the VA hospital in Memphis, and had been receiving private treatment at the Tippah County Hospital from Dr. H. Taylor who told him that he had had a grand mal seizure. He also stated that he was unable to work. Attempts by the RO to procure the veteran's records of treatment directly from the Tippah County Hospital were unsuccessful. The veteran was asked to obtain these records directly and in June 1997 sent to the RO a statement signed by Dr. Taylor, describing the veteran's condition as "[s]eizures, stroke, weakness, trouble remembering and thinking [and] unable to drive himself." In June 1997, the veteran was provided a VA compensation and pension examination for diseases and injuries of the brain. He complained that he was still "a little bit weak" on the right side from his stroke in 1991. He also indicated that his seizures were well controlled, but he could no longer drive because of the seizures. On examination, cranial nerves II through XII were intact. The Weber's test lateralized slightly to the right. Deep tendon reflexes were decreased in the lower extremity on the left. The left patellofemoral reflex was 2-3/4+. The upper extremities showed the left bicep reflex to be decreased at 3+/4+. The veteran's strength was decreased throughout the right side of the body, being 3+/5+ in the upper and lower extremities. Sensation was intact throughout. The diagnoses included (1) status post right MCA distribution cerebral infarct (parietal lobe) and (2) residuals right-sided weakness secondary to cerebrovascular accident. Analysis The veteran is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8008. Under this Diagnostic Code, residuals of thrombosis of vessels of the brain are rated a minimum of 10 percent disabling, provided that such residuals are objectively ascertainable. When ratings in excess of the prescribed 10 percent rating are assigned, the impairment of motor, sensory or mental function must be evaluated by analogy referring to the appropriate bodily system of the schedule. 38 C.F.R. § 4.124a. In this case, the veteran is rated 20 percent for symptoms analogous to mild incomplete paralysis of the upper radicular group, and 10 percent for symptoms analogous to mild incomplete paralysis of the sciatic nerve, below the knee. The veteran's mild right upper extremity weakness is evaluated under Diagnostic Code 8510, Upper radicular group (fifth and sixth cervicals). Under this code a 20 percent evaluation is warranted for mild incomplete paralysis of the upper radicular nerves of the major extremity. A 40 percent rating requires moderate incomplete paralysis, and where there is severe incomplete paralysis, a 50 percent evaluation will be awarded. If there is complete paralysis, where all shoulder and elbow movements are lost or severely affected, but the hand and wrist movements are not affected, a 70 percent evaluation will be assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8510 (1999). The veteran's mild right lower extremity weakness is evaluated under Diagnostic Code 8520 (Sciatic nerve). Under this code, a 10 percent evaluation may be assigned for incomplete paralysis with mild symptomatology. Incomplete paralysis with moderate and moderately severe symptomatology warrants a 20 percent and a 40 percent evaluation, respectively. Incomplete paralysis with severe symptomatology with marked muscular atrophy may warrant a 60 percent evaluation. Finally, an 80 percent evaluation may be assigned for complete paralysis, where the evidence shows that the foot dangles and drops, with no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (1999). A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diagnostic Codes 8510 through 8540 (1999). It is noted that the veteran is right-handed; thus, his right arm is his major upper extremity. In this case, the evidence shows that the veteran's cerebrovascular accident resulted in right-sided hemiparesis, noted to be "almost totally resolved" on his November 1996 hospitalization report for seizures. On the recent June 1997 VA examination, the left patellofemoral reflex was 2-3/4+. The upper extremities showed the left bicep reflex to be decreased at 3+/4+. The veteran's strength was decreased throughout the right side of the body, being 3+/5+ in the upper and lower extremities. Sensation was intact throughout. The diagnoses included (1) status post right MCA distribution cerebral infarct (parietal lobe) and (2) residuals right-sided weakness secondary to cerebrovascular accident. The veteran's only complaint was that he was still "a little bit weak on the right side" from his stroke in 1991. The Board finds that this is a "mild" level of disability, and with no more than right sided weakness he has not met the requirement for a higher or "moderate" level of disability contemplated by Diagnostic Codes 8510 and 8520. In making the determination that it is no more than mild, the Board relies on both the medical evidence in which the veteran's right sided hemiparesis is noted to be "almost totally resolved," and the veteran's own statements where he indicated that he has only a "little bit of weakness." This approximates a disability picture which is no more than "mild." The preponderance of the evidence of record is against disability ratings in excess of 20 percent for residuals of a cerebrovascular accident involving the right upper extremity, and 10 percent for residuals of a cerebrovascular accident involving the right lower extremity. Because the evidence for and against a higher evaluation is not evenly balanced, the rule affording the veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extraschedular Consideration In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (1999). "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). The Board notes first that the schedular evaluations for the disabilities in this case are not inadequate. Higher ratings are provided for certain impairments of motor and sensory function affecting the body as a residual of cerebrovascular accident; however, the medical evidence reflects that those manifestations are not present in this case. Second, the Board finds no evidence of an exceptional disability picture in this case. The veteran has not required any periods of hospitalization for his service-connected weakness of the right upper and lower extremities. Moreover, the Board notes that there is no evidence in the claims file to suggest that marked interference with employment is the result of his service-connected weakness of the right upper and lower extremities. The Board particularly notes that while he has been hospitalized for seizures, which have been attributed to his cerebrovascular accident, he is not at this time service- connected for this disorder. It is undisputed that the veteran's right sided weakness has an adverse effect on his employment, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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 (1999). Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER An increased evaluation for residuals of a cerebrovascular accident involving the right upper extremity is denied. An increased evaluation for residuals of a cerebrovascular accident involving the right lower extremity is denied. REMAND Heart Disease with Hypertension The VA has a duty to assist the veteran once his claim is found to be well-grounded. 38 U.S.C.A. § 5107(a)(West 1991). A well-grounded claim is one which is meritorious on its own or capable of substantiation. It need not be conclusive, but only plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The veteran's claim for increased rating in this case is shown to be well grounded, but the duty to assist him in its development has not yet been fulfilled. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). Upon careful review of the evidence of record and the procedural history of the case, the Board finds that a remand to the RO is necessary prior to appellate adjudication of the issue of increased rating for heart disease with hypertension, status post myocardial infarction, currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. While this appeal was pending, the applicable rating criteria with respect to the cardiovascular system was revised, effective January 12, 1998. See 62 Fed.Reg. 65207-65224 (December 11, 1997). Because the appellant's claims were pending at the time these regulations became effective, his claim should be considered under both the old rating regulations and the current regulations. Although the RO provided the veteran with the new regulations in a March 1998 supplemental statement of the case, it does not appear that the RO actually considered the veteran under the new criteria. The new rating criteria represents a significant change in how cardiovascular disorders are evaluated, relying on the results of stress testing to determine the level at which dyspnea, fatigue, angina, dizziness, or syncope develops, and expressing this in METs or metabolic equivalents. Although the veteran was provided a VA compensation and pension examination in June 1997, no stress test has been performed since April 1996. The Board finds that this evaluation is over three and one half years old and, and although not too old on this basis alone, it predates his claim for increase by over a year. Therefore it likely does not reflect the current state of the veteran's heart disease. The veteran should be rescheduled for another VA examination and the appropriate testing done to determine his current METs, or his METs should be estimated by the examiner. See Note 2 to 38 C.F.R. § 4.104 (1999). The veteran should also be asked about any treatment he has received for his heart disease since April 1997, the most recent outpatient treatment records in the claims file. Thereafter, the RO must adjudicate the appellant's claim under whichever set of regulations is determined to be more favorable to the appellant. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Unemployability The RO denied entitlement to a total disability rating based on individual unemployability, finding that the 50 percent combined evaluation assigned to the veteran's disabilities did not meet the schedular standards for consideration under 38 C.F.R. § 4.16(a). Because this issue is, in part, dependent on the level of disability assigned to each of the veteran's service-connected disabilities, which will be readjudicated following completion of further development required by this remand, the Board is of the opinion that, in order to accord the veteran due process, the RO should have the opportunity to again consider entitlement to a total disability rating. See Harris v. Derwinski, 1 Vet. App. 180 (1991), 38 U.S.C.A. § 7105(c) (West 1991) (inextricably intertwined claims). Moreover, it does not appear that the veteran completed a current VA Form 21-8940, Veteran's Application for Increased Compensation Based in Unemployability. This should be requested from the veteran and associated with the claims file. Instructions to the RO In light of the change in law, and to ensure full compliance with the duty to assist and due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should send the veteran, and request that he complete, a VA Form 21- 8940, Veteran's Application for Increased Compensation Based in Unemployability. The RO should, with the assistance of the veteran, obtain a list containing the dates and places of all private and VA medical and/or hospital treatment related to his service-connected heart disease with hypertension which have not already been associated with the record. 2. Upon receipt of a satisfactory response, the RO should obtain from the veteran a properly executed authorization for the release of private medical records, if any. The RO should then seek to obtain copies of all relevant VA records, specifically those involving hospitalizations and outpatient treatment for the veteran's heart disease with hypertension. 3. Following the above, the veteran should be scheduled for the appropriate examination or examinations to determine the extent of his service-connected heart disease with hypertension. The claims folder, to specifically include a copy of the revised cardiovascular rating criteria, effective January 12, 1998, should be made available to the examiner(s) for review prior to the examination(s). The examiner(s) should review the pertinent history of the veteran's service-connected disorder(s). The examination report(s) should include a detailed account of all manifestations of cardiovascular pathology found to be present, including evaluation of the veteran's condition expressed in METs, either by testing or by estimation if testing is not possible. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report, if any. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 5. The RO should readjudicate the veteran's claim for an increased evaluation for heart disease with hypertension, status post myocardial infarction, with consideration of the revised rating criteria found in 38 C.F.R. § 4.104. The RO should consider whether either the new or old version of the rating criteria is more favorable to the appellant's claim. If one or the other is more favorable, i.e., the appellant would be granted a higher rating under one than under the other, the RO should so state and then apply the more favorable version of the regulation to the claim. If the result is the same under either set of criteria, the RO should apply the new regulations to the claim. The RO should also determine whether the veteran's condition presents such an exceptional or unusual disability picture that it renders impractical the application of the regular schedular standards, and warrants extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). 6. The RO should readjudicate the veteran's claim for a total disability rating based on individual unemployability due to his service- connected disabilities under 38 C.F.R. § 4.16(a) (1999). The RO should make a determination regarding marginal employment, if applicable. 7. Following completion of these actions, the veteran and representative should be provided with a Supplemental Statement of the Case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The veteran needs to take no action until so informed. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested adjudication. The purpose of this REMAND is to assist the veteran. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals