09-27 874
09-27 874
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served in USAF from June 1988 to August 2008 and appealed VA RO ratings for bilateral upper-extremity peripheral nerve disability (numbness/tingling).
- Board previously granted 30% (right) and 20% (left) in Dec 2014; Court vacated part of that decision in Feb 2016 and remanded for clarification of median/ulnar involvement.
- Record includes VA exams (2008, 2009, Sept 2016), EMG reports (2008, 2013), and private treatment records; Sept 2016 exam documented greater left-hand impairment and reduced grip strength bilaterally.
- Sept 2016 findings: right lower radicular group = moderate incomplete paralysis; left lower radicular group = severe incomplete paralysis; nerve-specific findings (radial, median, ulnar) with varying severity; left forearm atrophy and decreased left grip strength.
- Board found substantial compliance with prior remand and adequate development; it applied DCs for peripheral nerve/ radicular groups and avoided pyramiding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether entitlement to >30% for right upper-extremity numbness/tingling is warranted | Right-side symptoms (numbness, paresthesias, decreased grip) justify >30% | Ratings limited to applicable diagnostic codes; avoid pyramiding among nerve/radicular codes | Granted: increased to 40% under DC 8512 (moderate incomplete paralysis, major extremity) |
| Whether entitlement to >20% for left upper-extremity numbness/tingling is warranted | Left-side severe findings (severe radicular and nerve involvement, atrophy, weakness) justify >20% | Same: apply highest appropriate single DC and avoid separate ratings for overlapping symptomatology | Granted: increased to 40% under DC 8512 (severe incomplete paralysis, minor extremity) |
Key Cases Cited
- Bernard v. Brown, 4 Vet. App. 384 (establishes standard for proceeding once VA development is complete)
- Stefl v. Nicholson, 21 Vet. App. 120 (examination adequacy and medical rationale requirements)
- Stegall v. West, 11 Vet. App. 268 (requirement of substantial compliance with remand instructions)
- Gonzales v. West, 218 F.3d 1378 (Board need not discuss every piece of evidence)
- Timberlake v. Gober, 14 Vet. App. 122 (Board must analyze probative value and explain rejections)
- Thun v. Peake, 22 Vet. App. 111 (standard for extraschedular consideration)
- Kutscherousky v. West, 12 Vet. App. 369 (right to submit additional evidence after remand)