Citation Nr: 18132350
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-02 384
DATE:	September 6, 2018
ORDER
An increased rating for right central facial palsy, residual of cerebrovascular accident, currently noncompensable, is denied.
An increased rating for aphasia, residual of cerebrovascular accident, currently 10 percent, is denied.
An increased rating for right lower extremity sciatic nerve disability, residual of cerebrovascular accident, currently 10 percent, is denied.
REMANDED
Service connection for bilateral hearing loss is remanded.
Service connection for tinnitus is remanded.
FINDINGS OF FACT
1. The Veteran’s right central facial palsy, residual of cerebrovascular accident, has not been manifested by moderate incomplete paralysis of the facial cranial nerve.
2. The Veteran’s aphasia, residual of cerebrovascular accident, has not been manifested by severe incomplete paralysis of the hypoglossal cranial nerve.
3. The Veteran’s right lower extremity sciatic nerve disability, residual of cerebrovascular accident, has not been manifested by moderate incomplete paralysis of the sciatic nerve.
CONCLUSIONS OF LAW
1. The criteria for an increased rating for right central facial palsy, residual of cerebrovascular accident, currently noncompensable, are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8207.
2. The criteria for an increased rating for aphasia, residual of cerebrovascular accident, currently 10 percent, are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8212.
3. The criteria for an increased rating for right lower extremity sciatic nerve disability, residual of cerebrovascular accident, currently 10 percent, are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On a VA Form 9 received in January 2016, the Veteran requested a Board hearing by videoconference.  However, in a May 2017 statement, he withdrew his request for a hearing.
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018).  
Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2018).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2018).
In this case, the Veteran is service-connected for residuals of a cerebrovascular accident.  He filed his claim for an increased rating in October 2014.
1. Right central facial palsy
The Veteran’s right central facial palsy has been assigned a 0 percent rating under Diagnostic Code 8207 for disability of the seventh (facial) cranial nerve.  38 C.F.R. § 4.124a (2018).
Under Diagnostic Code 8207, complete paralysis of the facial cranial nerve warrants a 30 percent rating.  Severe incomplete paralysis warrants a 20 percent rating.  Moderate incomplete paralysis warrants a 10 percent rating.  NOTE: Dependent upon relative loss of innervation of facial muscles.  
A February 2015 VA examination revealed no weakness of the facial muscles.  The examiner remarked that the Veteran has mild residuals of a cerebrovascular accident.  A February 2015 VA medical record shows that the Veteran has a right facial droop.  With no weakness of the facial muscles and only a droop on the right side, the above evidence shows a disability picture of only mild right central facial palsy.  Thus, the Board finds that the Veteran’s right central facial palsy has not been manifested by moderate incomplete paralysis of the facial cranial nerve to warrant a compensable 10 percent rating.
In conclusion, an increased rating for right central facial palsy is not warranted.  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
2. Aphasia
The Veteran’s aphasia has been assigned a 10 percent rating under Diagnostic Code 8212 for disability of the twelfth (hypoglossal) cranial nerve.  38 C.F.R. § 4.124a.
Under Diagnostic Code 8212, complete paralysis of the hypoglossal cranial nerve warrants a 50 percent rating.  Severe incomplete paralysis warrants a 30 percent rating.  NOTE: Dependent upon loss of motor function of tongue.
At the February 2015 VA examination, the Veteran reported mild swallowing difficulties.  Examination revealed no deviation of the tongue or palate.  The examiner remarked that the Veteran has mild residuals of a cerebrovascular accident.  The February 2015 VA medical record shows that palate elevation was equal bilaterally and tongue was midline.  The above evidence shows a disability picture of no more than moderate aphasia.  Thus, the Board finds that the Veteran’s aphasia has not been manifested by severe incomplete paralysis of the hypoglossal cranial nerve to warrant an increased 30 percent rating.  
In conclusion, an increased rating for aphasia is not warranted.  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49.
3. Right lower extremity sciatic nerve disability
The Veteran’s right lower extremity sciatic nerve disability has been assigned a 10 percent rating under Diagnostic Code 8520.  38 C.F.R. § 4.124a.
Under Diagnostic Code 8520, complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating.  Severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating.  Moderately severe incomplete paralysis warrants a 40 percent rating.  Moderate incomplete paralysis warrants a 20 percent rating.  
At the February 2015 VA examination, the Veteran reported mild difficulty walking especially on stairs.  Examination revealed 5/5 strength throughout the right lower extremity with no muscle atrophy and deep tendon reflexes of 3+ at the knee and ankle.  The Veteran circumducted the right leg when he walked, could not hop on the right foot, and reported slightly decreased vibratory sensation in the right foot, but there was no limb tremor or ataxia.  The examiner remarked that the Veteran has mild residuals of a cerebrovascular accident with no weakness or a clinically significant alteration in sensation but with a slightly irregular gait due to abnormal muscle tone in the right leg.  
The February 2015 VA medical record shows that the Veteran can perform his activities of daily living without any issues.  Examination revealed 5-/5 strength throughout the right lower extremity with normal tone and no atrophy and reduced sensation to light touch, pinprick, and vibration – a reported 30 percent decrease compared to the left lower extremity.  Heel to shin test was normal.  The Veteran walked with a slight limp and had difficulty with heel-to-toe walking but could stand on his toes and heels with some difficulty.  
With relatively normal strength and tone with no atrophy, and only slightly reduced sensation and a slight limp or irregular gait, the above evidence shows a picture of no more than mild right lower extremity sciatic nerve disability.  Even by the Veteran’s report, he has no difficulties with his activities of daily living and only mild difficulty walking.  Thus, the Board finds that the Veteran’s right lower extremity sciatic nerve disability has not been manifested by moderate incomplete paralysis of the sciatic nerve to warrant an increased 20 percent rating.  
In conclusion, an increased rating for right lower extremity sciatic nerve disability is not warranted.  As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49.
REASONS FOR REMAND
1. Service connection for bilateral hearing loss is remanded.
2. Service connection for tinnitus is remanded.
The Veteran asserts that he has hearing loss and tinnitus due to active service.  He is competent to report observable symptoms such as decreased hearing and ringing in the ears.  Layno v. Brown, 6 Vet. App. 465 (1994).  Moreover, an August 2009 VA medical record indicates an audiology referral, suggesting the presence of current disability.  Thus, the Veteran should be afforded a VA examination to determine whether he has hearing loss and tinnitus related to active service.
The matters are REMANDED for the following actions:
1. Obtain updated VA treatment records.
2. Schedule the Veteran for a VA examination to determine the nature and etiology of any hearing loss and tinnitus.  The examiner should review the claims file and note that review in the report.  The examiner should ensure that all indicated tests and studies are conducted.  The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that any hearing loss had its onset during active service or within one year thereafter, or is otherwise causally related to such service.  The examiner should also provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that any tinnitus had its onset during active service or within one year thereafter, or is otherwise causally related to such service.  The examiner should discuss the Veteran’s statements regarding the history and chronicity of symptomatology.  The examiner should provide a complete rationale for all conclusions.
3. Then, readjudicate the claims.  If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. W. Kim, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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