Citation Nr: 0329810 Decision Date: 10/30/03 Archive Date: 11/05/03 DOCKET NO. 00-08 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for left trigeminal neuropathy. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. Barone, Associate Counsel INTRODUCTION The veteran had active military service from August 1971 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the veteran has alleged that excessive tearing of his eye, chronic sinus infections, balance problems, hearing loss in the left ear, bone loss in the upper jaw, and arthritis are all due to the August 1995 tooth extraction which is the underlying cause of his neuropathy. As none of these issues have been adjudicated by the RO, they are referred to the RO for appropriate action. FINDINGS OF FACT 1. All available evidence and information necessary for an equitable disposition of the veteran's appeal have been obtained. 2. Any neuralgia of the veteran's left trigeminal nerve does not more nearly approximate severe incomplete paralysis of the nerve than moderate incomplete paralysis of the nerve. CONCLUSION OF LAW A rating in excess of 10 percent for left trigeminal neuropathy is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8205 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2002) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Evidence associated with the veteran's claims folders includes treatment records from Andrew J. Diamond, M.D., which note that the veteran was seen in June 1995 with complaints of chronic facial pain and pressure, dizziness, popping sounds in his ears, and watering of his eyes. The veteran reported that he had been on many over the counter medications and on multiple antibiotics without relief. The veteran was placed on Claritin. The veteran reported less of a headache and feeling less dizzy after one week on Claritin. Dr. Diamond noted that the veteran still had nasal obstruction. Review of the record indicates that the veteran underwent extraction of a tooth at a VA medical center in August 1995. In September 1995 the extraction site was noted to be healing well. In October 1995 the veteran reported that he had received private treatment for a dry socket and that he did not care to have any more teeth pulled. A December 1995 examination report from Centa Medical Group shows that there was no antral fistula at the site of the extracted tooth. There was no swelling, redness or sign of pus around the gum. Subsequent treatment notes from Dr. Diamond show the veteran's report of dental problems in April 1996. The veteran underwent a procedure to remove root tips from his left sinus in May 1996. A June 1996 note indicates that the veteran was healing well. In July 1996 the veteran complained of pain in the left side of his face and some drainage from the left nostril. Oral examination revealed a well healed area from the May 1996 procedure and the pharyngeal examination revealed some post nasal drip. Treatment notes from Green B. Neal, M.D., for the period of November 1996 to February 1997 show the veteran's report of a tooth extraction followed by a sinus infection. The provider noted that the veteran had later undergone the extraction of two adjacent teeth. In February 1997 the veteran presented with pain and complained of bloody discharge from his sinuses. A May 1997 treatment note from a private neurologist shows impressions of atypical trigeminal neuralgia secondary to trigeminal neuroma and Tolosa-Hunt syndrome. A September 1997 treatment note from Dr. Diamond shows that the veteran was seen for mucus drainage and some swelling in the left cheek. Dr. Diamond indicated that while the veteran had some excess secretions nasally, they were probably more allergic than infectious. Maxillary sinusitis was diagnosed in December 1997. A VA outpatient treatment note shows that in December 1997 the veteran complained of pain in the left side of his face, radiating into his jaw and neck. He reported that his pain was not controlled with Vicodin. He was referred to neurology. A January 1998 neurology note reflects the veteran's complaints of pain in the left side of his face, throbbing and blurred vision. He denied that previously prescribed medications relieved his pain. The impression was trigeminal neuralgia. Benefits pursuant to 38 U.S.C. § 1151, for left trigeminal neuropathy were granted in February 1999. The RO determined that the veteran's neuropathy was 10 percent disabling pursuant to the diagnostic code for trigeminal neuropathy, and the veteran appealed from that decision. An August 1999 VA outpatient treatment note indicates that the veteran felt great. He denied headaches and visual problems. A VA neurological examination was conducted in June 2000. The veteran complained of tremor and pain on the left side of his face following a tooth extraction. He reported that he developed intense pain that eventually subsided with pain medication. Neurological examination revealed good strength throughout, with normal deep tendon reflexes. The cranial nerves were normal, including the facial nerve and the trigeminal nerve. Corneal reflexes were good, and masticatory muscles were deemed to be okay. There were no visual defects. The impression was trigeminal neuralgia under partial control with Tegretol. Records from Dr. Neal for the period from February to May 2001 show that the veteran continued to take medication for pain. In March 2001 he complained of face pain. In April 2001 the physician indicated that the veteran had some puffiness around his eyes and that he continued to have pain. In an August 2001 statement, the veteran indicated that he wished the evaluation for his trigeminal neuralgia to be increased. He indicated that his diet and activities had been restricted. He complained of frequent dizzy spells and blurred vision. At a VA dental examination in August 2001 the veteran reported symptoms which he believed to be due to complications from the tooth extraction in 1995. Those problems included pain involving the left side of his face and head which radiated to his left arm and leg, periodic swelling beneath his left eye, pain in the left hard palate and maxillary edentulous ridge, discharge from his left eye, pain radiating to his left ear, paresthesia over the left cheek, cheek biting on the left side and the tendency for food to fall out of his mouth on the left side. The veteran claimed that he developed such complications following the extraction of a tooth in 1995, due to a retained root. The examiner indicated that he did not feel qualified to address the veteran's claim based on the available evidence. He recommended that an oral or maxillofacial surgeon examine the veteran. The veteran was afforded a VA neurological examination in September 2001. He complained of pain in the left jaw that radiated to the back of his head. He reported numbness in the left face, twitching and tremor. He denied numbness on the other side of his face, trouble chewing except for pain, weakness while chewing, trouble with his left ear, hearing, tinnitus, dysarthria, dysphasia, diplopia or dizziness. Examination of the cranial nerves revealed nonspecific numbness of the left face in a patchy distribution inconsistent with any cranial nerve distribution. There was normal sensation of the inner aspect of the left cheek. There was no evidence of facial paralysis. The cranial nerves were intact. The examiner noted that the veteran had very poor dental hygiene secondary to the veteran's failure to brush his teeth. He also noted that there were many pieces of residual food between the veteran's teeth. The impression was history of dental extraction with nonspecific numbness of the left side of the face and pain in the left jaw. The examiner noted that there was no evidence of cranial nerve compromise and that all cranial nerves were normal. He concluded that the numbness on the left side of the veteran's face was of no clinical significance, and pointed out that the veteran had normal sensation on the inner aspect of his left cheek. He explained that if the veteran had trigeminal nerve compromise he would have been having left-sided weakness of the chewing muscle and left paralysis. He opined that the veteran had no cranial nerve compromise secondary to the dental extraction. With respect to the veteran's complaints of pain in his left jaw, the examiner opined that such symptoms resulted from poor dental hygiene rather than the dental extraction. II. Veterans Claims Assistance Act of 2000 The Board notes that during the pendency of the veteran's claim, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law and codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In addition, regulations implementing the VCAA were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). The liberalizing provisions of the VCAA and the implementing regulations are applicable to the veteran's claim. The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA and the implementing regulations were in effect when the veteran's claim was most recently considered by the RO. The record reflects that through the statement of the case, supplements thereto and RO correspondence and other contact between the veteran's representative and the RO, the veteran has been informed of the requirements for the benefits sought on appeal, the evidence considered by the RO, the reasons for its determinations, the evidence and information necessary to substantiate his claim, the information required from him in order for VA to obtain evidence and information in support of his claim, and the assistance that VA would provide in obtaining evidence and information on his behalf. Therefore, the Board is satisfied that the RO has complied with the notification requirements of the VCAA and the implementing regulations. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA and private records pertaining to the 1995 dental extraction have been associated with the record. The RO has obtained all records identified by the veteran pertaining to this claim. The veteran has also been provided with appropriate VA examinations. The representative's argument in the motion to vacate that a remand for another VA examination is in order is addressed below. Neither the veteran nor his representative has identified any other evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such available evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. III. Analysis Disability ratings are determined by applying the criteria set forth in the VA schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2002). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.10 (2002). Neuralgia, cranial or peripheral, characterized usually by dull and intermittent pain, or typical distribution so as to identify the nerve, is to be rated on the same scale, with maximum equal to moderate incomplete paralysis. Tic douloureux or trifacial neuralgia may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2002). Neuralgia of the fifth (trigeminal) cranial nerve is rated as paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8405. Complete paralysis of the fifth cranial nerve is rated as 50 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Moderate incomplete paralysis is rated as 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8205 (2002). 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. Based on a review of the evidence of record, the Board concludes that a rating in excess of 10 percent for the veteran's trigeminal neuropathy is not warranted. In this regard, the Board recognizes that the veteran complains of decreased sensation and pain. Records from his private physician document his complaints of pain and the prescription of medication to relieve that pain, but they do not attribute the symptoms to trigeminal neuropathy. Notably, private treatment records also indicate the veteran's complaints of left-sided facial pain secondary to sinusitis prior to the tooth extraction which is the underlying cause of the veteran's neuropathy. The January 1998 VA outpatient record does indicate that the veteran had trigeminal neuralgia, but detailed findings upon which to conclude that the disability more nearly approximates severe than moderate incomplete paralysis of the nerve were not reported. At the June 2000 examination, the trigeminal nerve was found to be normal and the neuralgia was considered to be under partial control with medication. On examination in September 2001, the veteran was found to have only nonspecific numbness of the left face, and the examiner concluded that it was of no clinical significance. He indicated that the veteran did not manifest signs of trigeminal nerve compromise and supported this conclusion. With regard to the veteran's complaints of pain in his left jaw, the examiner opined that such symptomatology was due to poor dental hygiene and not any neurological disorder. The current rating assigned to the veteran's trigeminal neuropathy contemplates moderate incomplete paralysis. As discussed above, none of the medical evidence provides a reasonable basis for concluding that the disability, if present, more nearly approximates the severe incomplete paralysis required for a higher evaluation. The Board has considered application of the benefit-of-the- doubt doctrine with respect to this matter but finds that there is no approximate balance of positive and negative evidence such as to warrant its application. The preponderance of the evidence is against the veteran's claim for a higher initial rating. The Board also notes that in a July 2003 motion to vacate the Board's June 2003 decision, the veteran's representative argues that remand of the instant issue is required in order to comply with Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1991). In this regard, the Board observes that the VA neurological examination conducted in September 2001 did not include a review of the veteran's claims folder. However, the Board finds that the veteran provided a sufficient history which was consistent with the evidence of record. Moreover, the veteran was afforded the September 2001 examination in order to ascertain the level of disability existing at that time. As noted previously, the September 2001 examiner indicated that there was no existing cranial nerve compromise, and that the left-sided facial numbness experienced by the veteran was of no clinical significance. He concluded that the veteran's current symptoms had resulted from poor dentition rather than the dental extraction. The Board therefore concludes that the examination was sufficient for the purpose of determining the nature and extent of the veteran's disability, and that along with the other medical evidence of record is adequate to allow the Board to reach a conclusion regarding the appropriate evaluation. The veteran's representative also argues that an examination by a maxillofacial surgeon is necessary to fully ascertain the extent of the veteran's disability. He points out that the August 2001 dental examiner concluded that he was not qualified to address the veteran's claims that he suffered from left facial pain, swelling, pain while chewing, pain radiating to the left ear, paresthesia over the left cheek, and trouble chewing. The Board notes, however, that such issues were addressed in the September 2001 neurological examination. As discussed above, the Board has concluded that such examination, in conjunction with the other evidence of record, was sufficient for the purpose of rating the veteran's disability. Consideration has also been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a rating in excess of 10 percent. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. The record reflects that the veteran has not required hospitalization for the disability. In addition, the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned evaluation. Therefore, the Board has concluded that referral of the case for extra- schedular consideration is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for left trigeminal neuropathy is denied. Shane A. Durkin Veterans Law Judge Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.