Citation Nr: 0003735 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 94-03 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a compensable rating for left brachial plexus neuritis prior to January 11, 1998. 2. Entitlement to a rating in excess of 20 percent for left brachial plexus neuritis on and after January 12, 1998. 3. Entitlement to service connection for a back disability, diagnosed as spondylosis of the lumbar spine with small herniated disk lesion L5-S1. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant served on active duty from April to October 1972. The instant appeal arose from a February 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Indianapolis, Indiana, which denied a claim for an increased rating for left brachial plexus neuritis. This case was remanded by the Board of Veterans' Appeals (Board) for further development in April 1996. By hearing officer decision dated in March 1999 an increased rating, to 20 percent, was granted, effective January 12, 1998. The claim for entitlement to service connection for a back disability is discussed in the REMAND section below which follows the ORDER in this case. FINDINGS OF FACT 1. Prior to January 11, 1998, the veteran's service- connected left brachial plexus neuritis was not manifested by objective medical evidence of loss of reflexes, muscle atrophy, sensory disturbances, or pain which was attributed to the veteran's service-connected left brachial plexus neuritis. 2. On and after January 12, 1998, the veteran's service- connected left brachial plexus neuritis was manifested by diminished left biceps and left supinato jerks; nonspecific sensory changes over the left hand and forearm; and complaints of pain. There was normal strength and muscle bulk on motor examination and no brachialis muscle weakness. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 0 percent for left brachial plexus neuritis have not been met prior to January 11, 1998. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8599-8613 (1999). 2. The criteria for a rating in excess of 20 percent for left brachial plexus neuritis have not been met since January 12, 1998. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8599-8613 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim for an increased rating for left brachial plexus neuritis is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that a mere allegation that a service-connected disability has increased in severity is sufficient to render the claim well grounded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is also satisfied that all relevant facts needed to adjudicate a schedular evaluation of the veteran's left brachial plexus neuritis have been properly developed. No further assistance to the veteran is required on that issue to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). A review of the record shows that the RO in March 1973 granted service connection for left brachial plexus neuritis and assigned a 30 percent disability rating. A March 1982 rating decision indicated that the evidence of record had been insufficient to evaluate the veteran's disability from November 29, 1974, to November 9, 1981. Relying on current evidence, the March 1982 rating decision determined that there was no basis for a compensable evaluation at that time. A July 1982 rating decision confirmed the noncompensable disability evaluation for left brachial plexus neuritis following a June 1982 VA examination which found no evidence of brachial plexus with normal neurological examination. The veteran was notified of these decisions and did not appeal. On November 2, 1992, the veteran filed a claim for an increased disability rating. The veteran's left brachial plexus neuritis has been evaluated under the provisions of Diagnostic Code 8599-8613 as neuritis of all radicular groups. The provisions of 38 C.F.R. § 4.123 provide that "[n]euritis, 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." Diagnostic Code 8513 applies to incomplete paralysis of all radicular groups. 38 C.F.R. § 4.124a, Diagnostic Code 8513 (1999). Mild, incomplete paralysis of all radicular groups of the minor extremity warrants a 20 percent disability evaluation; moderate, incomplete paralysis warrants a 30 percent disability rating; and severe, incomplete paralysis warrants a 60 percent rating. Id. I. Increased rating for left brachial plexus neuritis, evaluated as 0 percent disabling, prior to January 11, 1998. The evidence of record as regards the period prior to January 11, 1998, does not reveal any positive findings as regards residuals of a left brachial plexus injury. The examiner December 1992 VA examiner found no residual neurologic deficits. While the veteran complained of pain, the examiner noted that the continued complaints of pain were not very characteristic of brachial plexitis. In addition, the veteran's complaints of numbness and tingling were attributed by the examiner to nonservice-connected carpal tunnel syndrome or a generalized peripheral neuropathy. In a January 1993 written statement the veteran reported itching, tingling, and pain in the hands and "shock sensations" in the hands while grasping objects for extended periods. Likewise, the January 1994 VA examination revealed a normal nonfocal neurologic examination. In addition, a March 1994 EMG report was completely normal. Again in April 1994, a VA examiner found no evidence of neurologic injury. In addition, that report and VA treatment records contained evidence of functional overlay with history of questions of functionality and secondary gain. Thus, prior to January 11, 1998, there was no objective medical evidence of loss of reflexes, muscle atrophy, sensory disturbances, or pain which was attributed to the veteran's service-connected left brachial plexus neuritis. The medical evidence did not show that a compensable disability evaluation was warranted.Accordingly, a rating in excess of 0 percent prior to January 11, 1998, is not warranted. For the reasons discussed above, the evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1998). II. Increased rating for left brachial plexus neuritis, currently evaluated as 20 percent disabling, effective from January 12, 1998. In a March 1999 hearing officer decision an increased rating, to 20 percent, was granted, effective January 12, 1998, for the veteran's service-connected left brachial plexus neuritis. The increased rating was based on the diminished reflexes noted in the January 1998 VA examination report and the veteran's testimony as regards pain. However, since this claim has not been withdrawn, an increased rating above 20 percent remains at issue on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded). The evidence of record for the period from January 12, 1998, does not show that a rating in excess of 20 percent is warranted. The only positive findings over this period to the present were diminished left biceps and left supinato jerks, noted during the January 1998 VA examination; nonspecific sensory changes over the left hand and forearm, also noted during that examination; and complaints of pain. The January 1998 examination report showed normal strength and muscle bulk on motor examination and no brachialis muscle weakness. The veteran testified that he was current employed in the field of sales. Application of the pertinent regulations shows that medical evidence as to the severity of the veteran's service-connected left brachial plexus neuritis is not sufficient to support a finding of functional impairment which is greater than the currently assigned 20 percent disability rating since January 12, 1998. The evidence of record does not show that the criteria for a 30 percent disability rating based on moderate, incomplete paralysis have been met. The veteran is employed, he has normal muscle strength and muscle bulk, and his symptoms are intermittent. These symptoms are not the equivalent of moderate, incomplete paralysis. For these reasons, the Board does not find that a rating in excess of 20 percent for left brachial plexus neuritis is warranted. Accordingly, a rating in excess of 20 percent for the period since January 12, 1998, is not warranted. For the reasons discussed above, the evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1998). In reaching its decision, the Board considered the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). There simply is no evidence that the veteran's left brachial plexus neuritis has caused marked interference with employment (beyond that contemplated by the assigned evaluation) or necessitated frequent periods of hospitalization. In the absence of such factors, the criteria for submission for assignment of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). ORDER A claim for entitlement to an increased rating for left brachial plexus neuritis, evaluated as 0 percent disabling prior to January 12, 1998, is denied. A claim for entitlement to an increased rating for left brachial plexus neuritis, currently evaluated as 20 percent disabling, effective from January 12, 1998, is also denied. REMAND As noted above, the veteran's claim for service connection for a back disability was denied in a June 1998 rating decision. A Notice of Disagreement was received by the RO in late September 1998. Prior to the issuance of the March 1999 Statement of the Case, the veteran completed a VA Form 9, dated October 6, 1998, regarding the back disability. He stated that he desired a hearing at the RO before a Member of the Board. 38 C.F.R. § 20.702(a) provides that "an appellant may request that the [Board] hearing be scheduled prior to issuance of the Statement of the Case." Accordingly, the case is REMANDED for the following action: The veteran should be afforded a travel board hearing before a Member of the Board sitting in Atlanta, Georgia, at the earliest possible opportunity. Appropriate arrangements as to the date and time of the requested hearing are to be made by the RO in consultation with the veteran and his representative. Once the veteran has been afforded the requested hearing, or in the event that he withdraws his hearing request or fails to report to his hearing, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 or by the Court 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. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals