Citation Nr: 0511133 Decision Date: 04/19/05 Archive Date: 04/27/05 DOCKET NO. 02-16 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased disability rating for service- connected Bell's palsy, left, with synkinesis and contracture of the facial muscles, minor, currently evaluated as 10 percent disabling. WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty from December 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for Bell's palsy and assigned a noncompensable disability rating. Procedural history In February 2002, the veteran filed a claim for entitlement to service connection for paralysis of the face. The veteran's claim for service connection was granted by the RO in a May 2002 rating decision. A noncompensable disability rating was assigned. The veteran perfected his current appeal to the May 2002 rating decision with the timely submission of his substantive appeal (VA Form 9) in September 2002. The veteran testified before the Kathleen K. Gallagher, Acting Veterans Law Judge, at a Travel Board hearing which was conducted at the Jackson RO in June 2003. The transcript of the hearing is associated with the veteran's VA claims folder. This claim was previously before the Board in February 2004. At that time, the claim was remanded to afford the veteran a more thorough VA examination, with specific instructions that the examiner review the veteran's claims folder and opine as to whether the veteran's facial symptomatology was related to his service-connected disability. After this was accomplished, the RO issued a rating decision in November 2004 that increased the veteran's service-connected disability rating to 10 percent disabling. The veteran has not indicated that he is satisfied with the currently assigned 10 percent disability rating. Consequently, the issue of entitlement to a disability evaluation in excess of 10 percent for Bell's palsy, left, with synkinesis and contracture of the facial muscles, minor remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the Rating Schedule, the pending appeal as to that issue is not abrogated). FINDINGS OF FACT 1. The medical and other evidence of record indicates that the veteran's Bell's palsy is objectively manifested by synkinesis and minor contracture of the facial muscles on the left side of his face. 2. The evidence in this case does not show a marked interference with employment or frequent periods of hospitalization due to the veteran's Bell's palsy so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 10 percent for service-connected Bell's palsy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8299-8207 (2004). 2. The criteria for an increased disability rating for Bell's palsy on an extra- schedular basis have not been met. 38 C.F.R. 3.321(b)(1) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to an increased disability rating for service-connected Bell's palsy. Specifically, he contends that the service-connected disability causes him a number of problems, including facial numbness and distortion, sinus problems, tearing and difficulty chewing. The Veterans Claims Assistance Act The Board has given consideration to the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) (codified as amended at 38 U.S.C.A. § 5102, 5103, 5103A, 5107). The VCAA eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,630 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Except for provisions pertaining to claims to reopen based upon the submission of new and material evidence, which are not at issue here, the implementing regulations are also effective November 9, 2000. Consequently, the regulations are accordingly applicable. See Holliday v. Principi, 14 Vet. App. 280 (2000) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). Notice The VCAA requires 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. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) (a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA). To comply with these requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). The Board observes that the veteran was notified by the August 2002 statement of the case (SOC) and the November 2004 supplemental statement of the case (SSOC) of the pertinent law and regulations, of the need to submit additional evidence on his claim, and of the particular deficiencies in the evidence with respect to his claim. More significantly, a letter was sent to the veteran in February 2002, which was specifically intended to address the requirements of the VCAA. That letter detailed the evidence needed to substantiate his claim for VA benefits. The letter also stated that the veteran's service medical records had been requested and that the RO was in receipt of a private medical report submitted by the veteran. Thus, the letter, in conjunction with the August 2002 SOC and the November 2004 SSOC, not only notified the veteran of the evidence already of record, but also notified him specifically of the additional evidence that was needed in his case. According to VA's General Counsel, the notice provisions of VCAA do not apply if, in response to a decision on a claim for which VA has already provided the VCAA notice, the claimant files a notice of disagreement (NOD) that raises a new issue. See VAOPGCPREC 8-2003 (December 22, 2003). In February 2002, the veteran filed claims for entitlement to service connection for facial paralysis. He was provided VCAA notice regarding this claim by means of the February 2002 VCAA letter. In a May 2002 rating decision, the RO granted service connection for Bell's palsy and assigned a noncompensable disability rating. The veteran filed a NOD as to the assigned rating. Therefore, in accordance with VAOPGCPREC 8-2003, the notice provisions of VCAA are not applicable as to the increased rating claim. That is, because the veteran was provided with adequate VCAA notice in February 2002 in regards to his initial service connection claim, VA is not required to provide additional notice with respect to the subsequent "downstream" claim for an increased rating. The Board therefore concludes, based on the VA OGC opinion, that furnishing the veteran with additional VCAA notice is not required. See 38 U.S.C.A. 7104(c) (the Board is bound in its decisions by precedent opinions of the chief legal officer of VA). It appears from the contentions and arguments presented by the veteran that he is fully aware of the relevant law and evidence germane to his claim on appeal and that he is aware, as well, of the responsibilities that both he and VA share with respect to the development of the claim. Thus, the Board concludes that the veteran has been amply and correctly informed of what is required of him and of VA in connection with his claim. Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). In the February 2002 VCAA letter, the RO informed the veteran that VA "must make reasonable efforts to help you get evidence necessary to support your claim. We will try to help you get such things as medical records, employment records, or records from other Federal agencies." The letter also stated that a VA examination would be provided if necessary to make a decision on his claim. Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). The February 2002 letter told the veteran to: "Send us medical treatment records from your private physicians, or complete the enclosed VA Form 21-4142 authorizing us to request the records for you." The letter explained to the veteran that it was still his responsibility to support his claim with appropriate evidence, and that if he wished for the RO to request records on his behalf he must give enough information about them so that they could be requested from the person or agency who has them. Finally, the RO must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). The February 2002 letter requested: "Send the information describing additional evidence or the evidence itself." The Board believes that this request substantially complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. The Board finds that the February 2002 letter properly notified the veteran of the information, and medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim, and it properly indicated which portion of that information and evidence is to be provided by the veteran and which portion the Secretary would attempt to obtain on behalf of the veteran. The Board notes that, even though the letter requested a response within 30 days, it also expressly notified the veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent). The Board notes that the fact that the veteran's claim was adjudicated by the RO in May 2002, prior to the expiration of the one-year period following the February 2002 notification to the veteran of the evidence necessary to substantiate his claim, does not render the RO's notice invalid or inadequate. The recently enacted Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 107, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38 U.S.C. § ____), made effective from November 9, 2000, specifically addresses this matter and provides that nothing in paragraph (1) of 38 U.S.C.A. § 5103 shall be construed to prohibit VA from making a decision on a claim before the expiration of the one-year period referred to in that subsection. Finally, review of the record reveals that the veteran was provided notice of the VCAA in February 2002, prior to the initial adjudication of this claim by rating decision in May 2002. Therefore, there is no prejudice to the veteran in proceeding to consider the claim on the merits. See Bernard v. Brown, 4 Vet. App. 384 (1993). Based on this procedural history, the Board finds that the veteran was notified properly of his statutory rights. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2004). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the RO has obtained the veteran's service medical records and VA treatment records. The veteran was provided VA medical examinations in April 2002 and May 2004, the results of which will be referred to below. The veteran asserted in his September 2002 notice of disagreement and a March 2003 statement that his April 2002 VA examination was inadequate. As noted above, the Board remanded the veteran's claim in February 2004 to allow for another VA examination. The veteran was subsequently provided a VA examination in May 2004. The report of the May 2004 medical examination reflects that the examiner reviewed the veteran's medical records, recorded his past medical history, noted his current complaints, conducted a physical examination and rendered appropriate diagnoses and opinions. The veteran has not argued that he is dissatisfied with the results of the May 2004 VA examination. The veteran has been accorded appropriate opportunity to present evidence and argument in support of his claim. He has not indicated the existence of any other evidence that is relevant to his appeal. Thus, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. Pertinent Law and Regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2004). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. A specific diagnostic code will be discussed where appropriate below. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. Fenderson v. West, 12 Vet App 119 (1999). When assigning an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings". See Fenderson, 12 Vet. App. at 126. Specific rating criteria Under Diagnostic Code 8207 (Seventh (facial) cranial nerve, paralysis of), incomplete, moderate paralysis of the seventh cranial nerve warrants a 10 percent disability rating, incomplete severe paralysis of the seventh cranial nerve warrants a 20 percent disability rating, and complete paralysis of the seventh cranial nerve warrants a 30 percent disability rating. A note states that paralysis is dependent upon relative loss of innervation of facial muscles. 38 C.F.R. § 4.124a, Diagnostic Codes 8207 (2004). The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2004). Factual background A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. §§ 4.1, 4.41 (2004); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). As noted above, the veteran served on active duty from December 1943 to April 1946. Review of a report from the Surgeon General's Office (SGO) reflects that the veteran was seen at a hospital in April 1945 for Bell's palsy. The veteran filed his claim for service connection in February 2002. Along with his claim, he submitted a statement from J.W.D., M.D. dated in July 2001. Dr. J.W.D. indicated that the veteran had complaints of left facial paralysis stemming back to his time in the military. In April 2002, the veteran presented for a VA examination where he complained of intermittent numbness of his left face which caused him difficulty in chewing on the left. He reported no pain or other cranial nerve symptoms. Physical examination revealed good movement in all divisions of both facial nerves with mild synkinesis on the left. There was a drawing of the mouth to the left on puckering the lips and attempting to hold air against resistance. There was subjective decrease in perception of finger rub on the left. The remaining cranial nerves were intact. In his assessment, the examiner noted that the veteran gave a good history of Bell's palsy, but noted the veteran's complaints of recurrent facial number were not consistent with Bell's palsy, as the disease was typically a one-time occurrence. The examiner felt the veteran's numbness was due to another cause, perhaps his diabetes. The RO, in a May 2002 rating decision, granted service connection for Bell's palsy. A noncompensable disability rating was assigned. This appeal followed. In a statement dated in March 2003, the veteran's indicated that his facial neuropathy was not due to diabetes, but related to his service-connected Bell's palsy. During a June 2003 hearing before the Acting Veteran's Law Judge, the veteran stated he experienced pain, stiffness, swelling and numbness on the left side of his face. He also indicated that his left eye was lazy as a result of his Bell's palsy, occasionally causing vision problems. The veteran's spouse added that the veteran's left eye tears often and he has difficulty chewing. In February 2004, the Board remanded this claim for a new VA examination. The examiner was specifically instructed to review the veteran's claims folder and also to determine whether the veteran's facial complaints were at least as likely as not related to the veteran's service-connected Bell's palsy. The veteran presented for a VA examination in May 2004. The veteran's claims folder was reviewed. The veteran's complaints at that time included "laziness" of the left eye and difficulty chewing that caused him to bite the inside of the left cheek. He reported intermittent tearing from both eyes. Neurologic examination revealed minor contracture of the facial muscles on the left. Eye closure and function of the orbicularis oculi, frontalis, orbicularis oris and platysma seemed full and equal. There was no evidence of keratoconjunctivitis in either eye. The extraocular muscles were full and the pupils were equal and reactive. Facial sensation was intact bilaterally, as were both corneal reflexes. The VA examiner, pursuant to the Board's instruction, indicated that it was quite likely that the previously noted synkinesis on the left as well as the contractures noted on the current examination are the direct result of the veteran's Bell's palsy. The examiner stated that there was no evidence of fifth (trigeminal) involvement, which was consistent with Bell's palsy, a disease that only affects the seventh (facial) cranial nerve. VA outpatient records from the medical center in Jackson, Mississippi are dated from July 2001 until November 2004 and concern unrelated ailments. Analysis The veteran seeks an increased disability rating for his service-connected Bell's palsy. He currently complains of left eye laziness, numbness, stiffness, pain and difficulty chewing on the left side of the face. The Board has reviewed the evidence of record, and for reasons which will be expressed in greater detail below finds that the veteran's overall level of symptomatology is not consistent with that enumerated for an increased disability rating. Assignment of diagnostic code The veteran is currently assigned a 10 percent evaluation for his service-connected Bell's palsy, left, with synkinesis and contracture of the facial muscles, minor under 38 C.F.R. § 4.118, Diagnostic Codes 8299-8207(hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). The RO additionally assigned Diagnostic Code 8299 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy, such as Bell's palsy, will be coded first by the numbers of the most closely related body part and "99". See 38 C.F.R. § 4.20 (2004). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The objective medical evidence of record concerns neurological symptomatology in the left side of the veteran's face. The May 2004 VA examiner specifically noted that Ball's palsy involves the seventh cranial nerve, which is the subject of Diagnostic Code 8207. As there is no diagnostic code applicable to Bell's palsy, the RO appropriately rated the veteran under 8299 as well. The Board has considered the potential application of other diagnostic codes and finds that, in light of the anatomical localization and symptomatology reported by the veteran, Diagnostic Codes 8299-8207 are the most appropriate diagnostic codes by which to evaluate his Bell's palsy. The veteran has not suggested that any other diagnostic code would be more appropriate. One of the veteran's main arguments is that his Bell's palsy is causing him to have a lazy eye, tearing and vision problems. However, there is nothing in the medical record which indicates that the veteran has a loss of vision due to the service-connected Bell's palsy. To the extent that the veteran has opined that his service- connected Bell's palsy has caused problems with his vision, it is now well established that laypersons without medical training, such as the veteran, are not qualified to render a medical opinion regarding the etiology of disorders and disabilities. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative). The Board therefore believes, based on the diagnosis, history and current findings, that there is no loss of vision due to Bell's palsy. Thus, after consideration of all potentially applicable rating criteria, the Board finds that the veteran is most appropriately rated under the former Diagnostic Codes 8299-8207. See 38 C.F.R. § 4.27 (2004) Schedular rating The medical evidence of record, specifically the May 2004 VA examination, indicates minor contracture of the facial muscles on the left. This is consistent, at most, with an incomplete and moderate paralysis of the cranial nerve, or a 10 percent disability rating under Diagnostic Code 8207. There is no evidence of record of a severe or complete paralysis of the cranial nerve to warrant additional disability. In short, the objective VA examination results indicate that the veteran's service-connected Bell's palsy is correctly rated 10 percent disabling under Diagnostic Code 8207. Although Board does not doubt that the veteran may experience facial numbness and distortion, sinus problems, tearing and difficulty chewing., such symptomatology is contemplated in the currently assigned 10 percent rating. Therefore, there is no basis for the assignment of a schedular rating in excess of the currently assigned 10 percent for the veteran's Bell's palsy. Fenderson considerations As the factual background makes clear, at no time since the effective date of service connection, July 10, 2001, has the veteran's Bell's palsy met or nearly approximated the criteria for a higher disability rating. Accordingly, the Board concludes that staged ratings are not for application in this case. Extraschedular evaluation In the August 2002 SOC the RO included recitation of the regulation for an extraschedular rating. The Board will, accordingly, consider the provisions of 38 C.F.R. 3.321(b)(1) (2004) in connection with the issue on appeal. It should be clear from the discussion above that extraschedular consideration is not warranted. The Board notes in passing that the veteran has not in connection with this appeal indicated, nor presented evidence to support the premise, that his service-connected Bell's palsy results in marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (2004) (extraschedular rating criteria). In fact, during his June 2003 hearing, the veteran reported that he worked after service and was now retired. Accordingly, referral of this issue to appropriate VA officials for extraschedular consideration is not warranted. For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the claim. The benefit sought on appeal is accordingly denied. ORDER Entitlement to an increased rating for Bell's palsy, left, with synkinesis and contracture of the facial muscles, minor, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs