Citation Nr: 0005246 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 95-36 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased initial rating for brachial plexus neuropathy of the right upper arm rated 10 percent prior to March 1, 1996 and noncompensable (0 percent) from March 1, 1996. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active military service from February 1969 to August 1975 and from August 1979 to January 1993. The veteran brought a timely appeal to the Board of Veterans' Appeals' (the Board) from a September 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board in June 1997 remanded the case for further development. The case has recently been returned to the Board for appellate consideration. FINDINGS OF FACT 1. Right upper extremity (major) brachial plexus neuropathy is shown to be manifested by no more than mild sensory impairment and objective findings indicating appreciable, but slight, weakness with repetitive movement or against resistance that combined produce no more than moderate impairment. 2. The veteran's right brachial plexus neuropathy has not rendered his disability picture unusual or exceptional in nature, markedly interfered with employment, or required frequent inpatient care as to render impractical the application of regular schedular standards. CONCLUSIONS OF LAW The criteria for an initial rating of 10 percent for brachial plexus neuropathy of the right upper extremity from February 1993 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.124a, Diagnostic Code 8618 (1999). The criteria for an initial rating in excess of 10 percent for brachial plexus neuropathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.124a, Diagnostic Code 8618 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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 every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 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 application of the bilateral factor. 38 C.F.R. § 4.124a. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Paralysis of the circumflex nerve (major/minor): complete; abduction of arm is impossible, outward rotation is weakened; muscles supplied are deltoid and teres minor shall be rated 50/40 percent. Incomplete: severe 30/20 percent, moderate 10/10 percent, mild 0/0 percent. Diagnostic Code 8518. Rate neuritis as Diagnostic Code 8618 and neuralgia as Diagnostic Code 8718. Both the use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that a claim such as the veteran's is properly framed as an appeal from the original rating rather than a claim for increase but that in either case the veteran is presumed to be seeking the maximum benefit allowed by law or regulations. In Fenderson it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder and that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period, classified as "staged ratings". Ratings shall be based as far as practicable, upon average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 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). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 117 (1999). Analysis The RO in September 1993 granted service connection for brachial plexus neuropathy of the right upper arm and assigned a 10 percent rating under Diagnostic Code 8618 criteria from February 1, 1993. The VA examination in April 1993 found the veteran complaining of some loss of strength in the dominant right hand with repetitive motion and being unable to hold it up for a long period of time. The examiner reported good but diminished grip strength in the right hand, about 15 percent less than on the left. The left was stronger in pulling power and elevation against resistance. The examiner felt there was really a motor weakness on the right. The examiner did not report any problem with coaptation, separation or approximation of the fingers. There was no muscle atrophy appreciated and he had full pinprick sensation. The diagnosis was brachial plexus stretch with decreased right upper extremity strength and slight tremors. Service medical record showed similar complaints after an injury in the late 1980's although the separation examination showed a normal right upper extremity. A neurology examiner found 4 out of 5 motor power loss in the right triceps and slightly diminished pinprick in the ulnar distribution ton the right hand. There was no muscle atrophy and deep tendon reflexes were 2+ throughout. There were no pathological finger signs. The diagnosis was right upper extremity brachial plexus neuropathy associated with stretch injury. The veteran disagreed with the initial rating and VA reexamined him in late 1994. The orthopedic examination was directed to other disorders but it was noted that he was employed as an engineer. Neurologically, he complained of right arm weakness since trauma in 1986. He felt that his writing had deteriorated in the right hand although he was able to write and he did not report persistent numbness. The examiner reported 5/5 strength with no evidence of winging or intrinsic weakness of the right hand. The sensory examination was intact to light touch and pinprick. Reflexes were one at the biceps bilaterally. He showed good rapid alternating movement and fine finger movement and good finger-to-nose movement. Tone was normal throughout. The diagnosis was history of right brachial plexus neuropathy secondary to trauma. The examiner noted that currently he had no weakness and intact sensation but did have a history of maintaining contraction using the right arm and hand that had not changed since approximately 1987. Thereafter the RO in August 1995 proposed to reduce the rating and the veteran asserted that he continued to experience problems with grasping and repetitive motion and stress to the right upper extremity. The RO in November 1995 implemented the reduction to 0 percent effective March 1, 1996. The VA neurological examination that the Board asked for in the July 1997 remand was completed in mid 1998 and included a review of the veteran's claims file. The veteran complained of some right-sided pain in the shoulder area and trapezius region but did not report any specific weakness except with some repetitive movement. The examiner found on motor examination some mild weakness in the rhomboids on the right and he had some difficulty pushing backwards with the right arm throughout with the arms held behind the back. Reflexes were 1+ throughout, sensory testing was unremarkable and cerebellar testing was normal. The examiner reported history of right arm pain felt to be due to brachial plexus injury. The examiner stated that at the present time muscle testing in the right arm was normal except for some mild weakness with extension of the arm when it is held behind the back, which the veteran reportedly had not noticed before. He had no reflex asymmetry and normal sensation in the right arm. The examiner stated that his complaint was mainly of discomfort in the right trapezius area and right arm weakness with repetitive contractions. The examiner opined that his strength appeared to be intact otherwise except for the one muscle group noted. On an electrodiagnostic evaluation completed after the examination, the veteran reportedly denied any significant numbness or weakness in the right upper extremity. The examination found no wasting or weakness of the right upper extremity muscles, normal range of motion of the right shoulder, no sensory deficit and equal and symmetric deep tendon reflexes. The nerve conduction and electromyography findings were interpreted as showing evidence of chronic neuropathic changes in motor unit potentials of C7-C8 and T1 root innervated muscles in the right upper extremity that were not inconsistent with previously resolved lower brachial plexopathy or radiculopathy with no evidence of active pathology at this time. The veteran's brachial neuropathy is rated in accordance with the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8518, which assesses motor and sensory impairment as the primary rating criteria for the incremental ratings. The veteran has been provided the essential rating criteria. The Board finds the selected rating scheme appropriate for the veteran's disability in view of the symptomatology and the disease for which service connection is in effect. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); 38 C.F.R. §§ 4.20, 4.21. The Board finds that the examinations completed as a result of the remand are comprehensive and the record overall is adequate for an informed determination. Stegall v. West, 11 Vet. App. 268 (1998). Regarding the right upper extremity disability, applying the pertinent information to the rating schedule criteria leads the Board to conclude that a 10 percent evaluation is warranted for the entire initial rating period. The Board will give due consideration to the overall level of impairment in view of the several examinations since service. The intensity of the symptoms, overall, appears to reflect more nearly a level of impairment contemplated in the 10 percent evaluation under Diagnostic Code 8518 for the major extremity. The rating scheme applied does not require a mechanical application of the schedular criteria. Here, however, applying the rating schedule liberally results in a 10 percent evaluation that contemplates a moderate disability. The evidence of probative value in view of the detailed description of pertinent evaluative criteria, viewed objectively, clearly preponderates against the claim for a higher initial rating. It supports a conclusion that the veteran's disability is no more than moderate in view of complaints and findings reported in the record. The assessment in 1999 appears to be an accurate assessment of the disability manifested by little appreciable objective evidence of disabling residuals at that time. Nor does the veteran complain of a disability of any appreciable persistence. The Board finds the minimum compensable evaluation is warranted for the major extremity in view of the objective evaluation showing no manifestations of any significant weakness or sensory impairment consistently shown or complained of that approach more than moderate impairment. There is no medical evaluation reporting moderate or greater impairment from the disability at any time and current examination found no limitation of motion. Moderate impairment is more nearly approximated with application of the benefit of the doubt rule. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 38 C.F.R. §§ 4.20, 4.21. As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. § Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher initial rating. When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board finds the preponderance of the evidence is against the claim for an initial rating greater than 10 percent at any time. The Court has held that the Board is precluded by regulation from assigning an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the disability considered herein has not been shown to markedly interfere with employment, nor has it required frequent inpatient care. His employment as an engineer has been reported. The current schedular criteria for the periods of time in question adequately compensate the veteran for the current nature and extent of severity of his brachial plexus neuropathy. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER An initial rating of 10 percent for brachial plexus neuropathy of the right upper arm from March 1, 1996 is granted and to this extent the appeal is allowed, subject to the regulations governing the payment of monetary awards. An initial rating of greater than 10 percent for brachial plexus neuropathy of the right upper arm is denied. Mark J. Swiatek Acting Member, Board of Veterans' Appeals