Citation Nr: 18160509
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 10-36 789
DATE:	December 27, 2018
ORDER
Entitlement to an initial disability rating in excess of 60 percent for left upper extremity weakness, residuals of stroke associated with diabetes (diabetes) mellitus, type II, is denied.
Entitlement to an initial disability rating in excess of 40 percent for left lower extremity weakness, residuals of stroke associated with diabetes, beginning November 25, 2008 is granted. 
A disability rating in excess of 60 percent for left lower extremity weakness, residuals of stroke associated with diabetes, since March 14, 2012, is denied.
Entitlement to a total disability rating based on individual unemployability for the period prior to January 7, 2011, due to service-connected disabilities is granted.
 
FINDINGS OF FACT
1. The Veteran’s left upper extremity weakness has manifested with symptoms causing functional impairment that may be characterized as complete paralysis of the median nerve throughout the appeal period.
2. The Veteran’s left lower extremity weakness has manifested with symptoms causing functional impairment that may be characterized as severe incomplete paralysis of the sciatic nerve, with marked muscle atrophy, throughout the appeal period.
3. The Veteran is service-connected for left upper extremity weakness and left lower extremity weakness.  These disabilities arose out of a common etiology or a single accident, and have a combined rating in excess of 60 percent.  Application of schedular evaluation of a TDIU is appropriate as of November 25, 2008.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 60 percent, but no higher, for left upper extremity weakness have been not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.120-4.124, 4.124a, Diagnostic Code 8009-8515.
2. The criteria for a rating of 60 percent prior to March 14, 2012, for left lower extremity weakness have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.120-4.124, 4.124a, Diagnostic Code 8009-8520.
3. The criteria for a rating in excess of 60 percent since March 14, 2012, for left lower extremity weakness have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.120-4.124, 4.124a, Diagnostic Code 8009-8520.
4. The criteria for the grant of TDIU have been met, beginning November 25, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran has active duty service from April 1964 to June 1968.  He was awarded a Vietnam Service Medal with two bronze stars, among other commendations.
This matter comes before the Board of Veterans’ Appeals (Board) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.
In November 2016, the RO granted entitlement to a TDIU, effective January 7, 2011.
The Veteran withdrew his request for a hearing before the Board in March 2017.
In a May 2017, the Board remanded the claims for entitlement to a higher initial disability rating for left upper extremity weakness, entitlement to a higher initial rating for left lower extremity weakness, and to an intertwined TDIU for additional development.  A review of the claims file shows pursuant to the Board’s remand directives, the Veteran underwent a VA examination in June 2017 and in February 2018.  However, the RO did not adjudicate the intertwined claim for a TDIU.  As the decision below grants a TDIU for the period prior to January 7, 2011, the Board finds no prejudice in proceeding with the issuance of a decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The claim will therefore be adjudicated based on the evidence of record.
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1.  
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
1. Entitlement to an initial disability rating in excess of 60 percent for service-connected left upper extremity weakness, residuals of stroke associated with diabetes mellitus, type II.
The Veteran seeks an initial disability rating in excess of 60 percent for left upper extremity weakness resulting from a stroke.
The Veteran’s left upper extremity weakness is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8009-8515, the DC corresponding to impairment of the median nerve.  The November 2016 rating decision assigned a 60 percent disability rating effective November 25, 2008.
Under DC 8515, complete paralysis of the median nerve is rated as 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity. Complete paralysis is identified by symptoms such as the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances.
Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  38 C.F.R. § 4.69.  VA examination reports indicate that the Veteran is right handed, thus, for rating purposes, his right upper extremity is considered the major extremity and his left upper extremity is considered the minor extremity.  See 38 C.F.R. § 4.124a, DC 8515.
The Veteran has been assigned the maximum 60 percent schedular rating for this disability throughout the appeals period.  The left upper extremity weakness has already been assigned the maximum schedular rating available under 38 C.F.R. § 4.124a, DC 8009-8515, for complete paralysis of the median nerve of the minor extremity.  Consequently, there is no basis for assigning a higher schedular disability rating.  There are no additional expressly or reasonably raised issues on the record. 
2. Entitlement to an initial disability rating in excess of 40 percent beginning November 25, 2008, and in excess of 60 percent disabling from March 14, 2012, for service-connected left lower extremity weakness, residuals of stroke associated with diabetes mellitus, type II
The Veteran seeks a higher initial disability rating for left lower extremity weakness resulting from a stroke.  The November 2016 rating decision assigned a 40 percent rating effective November 25, 2008, and a 60 percent rating effective March 14, 2012.
The Veteran’s left lower extremity weakness is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8009-8520, the DC corresponding to impairment of the sciatic nerve.
Under DC 8520, moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis with marked muscular atrophy is rated 60 percent disabling. Complete paralysis is rated 80 percent disabling and is exemplified by symptoms such as the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.  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.
Private hospital records show that in May 2008, after undergoing a ventral incisional hernia repair, the Veteran suffered a stroke.  In a statement received October 2009, the Veteran reported that he had strong muscle spasms on his left side that caused severe tone in his muscles.  He reported that he needed a special brace on his left foot for foot drop and toe drop, or walked with a cane.  He indicated that the left side of his body was extremely sensitive, and that a slight brush against someone or something caused him pain.
At a December 2008 physical medicine rehabilitation consultation, the Veteran reported a lot of difficulty with pain in his left leg related to increased tone.   He reported that he went to physical therapy/occupational therapy twice a week, and was on baclofen 10 mg without any reported side effects.  Examination findings revealed MAS (Modified Ashworth scale) scores of 3 and 3+, consistent with considerable increase in muscle tone and passive movement difficulty, in the ankle plantarflexors, knee extensors and knee flexors, and decreased left knee flexion and ankle dorsiflexion when walking.  The examiner was unable to perform accurate strength testing due to spasticity.  The examiner assessed status post stroke with residual left hemiparesis and significant left lower limb spasticity.
In March 2009, the Veteran underwent a VA examination for evaluation of lower extremity peripheral neuropathy secondary to diabetes.  The Veteran reported that in May 2008, following a hernia repair, he suffered a stroke with left-sided weakness.  The Veteran indicated that he had not regained any strength in his left side since the stroke, but was able to walk with a cane.  He reported problems with numbness, tingling, and fatigue in his left extremities.  Physical examination showed increased muscle tone in the left lower extremity, 3+/4 reflexes, and 3-/5 strength in the left leg.
An October 2009 rehabilitation note reveals the Veteran ambulated with a single point cane, with decreased gait speed.  The Veteran reported that he still had difficulty walking done stairs and had to stop and step sideways using his right foot.  Examination findings showed the Veteran had left patellar muscle strength reflexes of 3+, and 10 beat left ankle clonus.  The examiner assessed residual left hemiparesis with significant left lower limb spasticity.
At a May 2010 visit, the Veteran reported significant difficulty with ambulation secondary to increased “tone” throughout his left lower extremity.  Examination findings showed moderately increased tone, and positive clonus test on the left.  The Veteran did not demonstrate foot drag when walking, but did have flat foot contact, mechanical transition of knee flexion/extension, and left lateral trunk and pelvic rotation due to a decreased stride on the left.
In April 2011, the Veteran underwent a VA examination.  The Veteran reported that he used an ankle brace for foot drop, that his leg ached when he put weight on it, and that he was getting Botox injections for spasticity.  Examination findings showed 3/5 strength in the left leg, 3+ deep tendon reflexes on the left side and 2+ on the right side, and increased muscle tone in the left extremities.  The examiner opined the Veteran’s median and sciatic nerve paralysis together rendered him unable to secure and maintain substantially gainful physical employment.
At a December 2011 rehabilitation follow up, the Veteran’s ankle foot orthosis (AFO) device was adjusted to try to correct instability in his gait and reduce left knee pain and hyperextension.  Examination showed hemiparetic gait, left lower limb circumduction, and decreased light touch sensation in the left lower limb.
In February 2012, the Veteran reported feeling better, but stated that he was hyperextending his knee more and felt unstable.  He reported multiple areas of pain including his left leg and right knee and shoulder.  He asked for a night splint to be worn at the ankle.  Examination showed that he was unable to passively get his ankle to neutral, and had decreased light touch sensation to the left side.
In March 2012, the Veteran underwent a VA examination.  Examination findings showed hemiplegic gait, 2/5 knee extension strength, 1/5 ankle plantar flexion strength, and 1/5 ankle dorsiflexion strength on the left side.  Deep tendon reflexes in the knee and ankle were 2+ on the right and 3+ on the left.  The Veteran had mild to moderate left-sided muscle atrophy.  The examiner opined that due to his significant neurological deficits, including spastic left-sided dense hemiplegia and hemiplegic gait, the Veteran would not be able be employable.
At a September 2013 neurology follow up, the Veteran was ambulatory with a cane and an electronic brace on his left leg.  Examination showed marked weakness of the left leg, hypoactive deep tendon reflexes, and decreased sensations on the left side.
In May 2014, the Veteran reported that he received Botox for spasticity but did not feel like it was working.  Physical examination showed marked weakness of the left leg, and the Veteran was not able to do any voluntary movements without the electronic brace.  The Veteran had mild spasticity and hyperreflexia on the left side, with decreased touch and pain sensation.
In December 2015, the Veteran underwent a VA examination.  The Veteran reported left leg spasticity and paresis, difficulty with balance, and left foot drop.  Examination findings showed that the Veteran was only able to fan his toes a little when attempting to flex his foot, asymmetric reflexes, and decreased vibratory sensation in the left foot.  Tandem, heel, and toe walks were not tested due to instability in his gait.  The examiner noted severe left leg muscle weakness with atrophy.  The examiner opined that severe hemiparesis made the Veteran’s walk very unstable, and that the left leg was essentially only able to be used as a pivot. 
In June 2017 the Veteran underwent a VA examination pursuant to the May 2017 Board remand.  The Veteran reported moderate left leg pain and paresthesia, but not numbness.  The Veteran had 3/5 knee extension strength, and 0/5 ankle plantar flexion and dorsiflexion strength.  No deep tendon reflexes were elicited in the knee or ankle.  Due to left leg spasticity and decreased strength, the Veteran was unable to weight bear greater than 5 seconds, and his left foot was rotated inward.  The examiner opined the had severe hemiparesis that significantly impacted his ability to perform activities involving the left leg, including standing or walking more than one or two steps.  
In February 2018, the Veteran underwent a second examination to clarify active and passive, and weightbearing and non-weightbearing range of motion results pursuant to Board remand directives.  The examiner noted that the Veteran was unable to perform repetitive use range of motion testing on the left side.
Based on consideration of the evidence of record, the Board finds that the Veteran’s left leg weakness most nearly approximated severe incomplete paralysis throughout the appeal period; therefore, a higher 60 percent rating is warranted from November 25, 2008 to March 14, 2012.
The Veteran’s left leg weakness has manifested with pain, weakness, hyperesthesia, and hemiparetic throughout the appeal period.  The Board notes that while muscle atrophy is not documented until March 2012, the December 2008 rehabilitation consultation and March 2009 VA examination both showed abnormal increased muscle tone due to spasticity.  Further, the December 2008 consultation was unable to perform accurate strength testing due to spasticity and coordination deficits.  The Board has considered these abnormal muscle tone examination findings as analogous to muscle atrophy contemplated in the schedular rating.  
VA examiners have consistently opined that the Veteran would be unable to sustain gainful activity, due in part to left lower extremity weakness.  In the June 2017 examination report, the examiner indicated that the Veteran’s left lower extremity weakness significantly impacted his ability to use his left leg, including standing or walking more than one or two steps. 
The combination of such sensory symptoms and motor changes, to include muscle tone changes and spasticity, are most consistent with a characterization of severe incomplete paralysis and a 60 percent rating under DC 8520.   It is noted the severity of the sciatic nerve paralysis was characterized as “mild” by the June 2017 VA examiner.  Nonetheless, the Board finds the functional impact of the Veteran’s condition requires a higher evaluation.  Throughout the appeal period, the disability has limited the Veteran’s ability to stand, walk, perform daily activities like driving, and required use of orthotics, braces, and canes to compensate for his left leg weakness and coordination deficits.
A higher rating is available for complete paralysis of the sciatic nerve but the Veteran’s left lower extremity weakness did not more nearly approximate such level of severity.  While the Veteran has demonstrated foot drop in examinations, he retains active, though weakened, movement below the knee.  The Veteran retains gross sensation and notable reflexes in the knee and ankle, though the Board also notes abnormal light/vibratory touch and asymmetric deep tendon reflex findings consistent with its finding of severe partial paralysis of the sciatic nerve.
In sum, the Veteran’s left lower extremity weakness more nearly approximates the criteria corresponding to a higher 60 percent rating throughout the entire appeal period. At no point in time has it more nearly approximated the criteria corresponding to a rating in excess of 60 percent; thus, further staging of the rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).
There are no additional expressly or reasonably raised issues presented on the record related to this claim.
3. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to January 7, 2011, due to service-connected disabilities.
The Veteran contends his unemployability is caused by his service-connected left upper extremity and left lower extremity weakness following a stroke.  On November 25, 2008, the Veteran filed the current claims for left upper extremity weakness and left lower extremity weakness.  VA received a formal claim (VA Form 21-8940) for a TDIU on January 7, 2011.  The Board notes that the claim of entitlement to a TDIU is in this case considered part-and-parcel of the increased initial rating claims on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  In the November 2016 rating decision, the RO awarded entitlement to individual unemployability effective January 7, 2011.
Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is “whether that Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19.
A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Disabilities resulting from common etiology or a single accident will be considered as one disability.  38 C.F.R. § 4.16(a).
As of November 25, 2008, the Veteran is service connected for left upper extremity weakness and left lower extremity weakness, in addition to diabetes, dysarthria, and memory loss.  These disabilities arose out of a common etiology or a single accident, and have a combined rating in excess of 60 percent.  Therefore, the combined rating met the criteria for a TDIU under 38 C.F.R. § 4.16 (a) (a single service-connected disability ratable at 60 percent or more).  The Board finds schedular evaluation of a TDIU is appropriate for the entire claim period.
(Continued on the next page)
 
The Board’s findings of fact, enumerated above, as applied to the law applicable in this matter, including application of VA’s benefit of the doubt rule, warrant the grant of a TDIU, effective November 25, 2008.
 
C. BOSELY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Lauritzen, Associate Counsel 

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