Citation Nr: 0810331 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-38 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating greater than 10 percent for service-connected facial spasms. 2. Entitlement to service connection for a bilateral hip disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran had active service from September 1990 to May 1991 and from March 2003 to July 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Nashville, Tennessee, that granted service connection for facial spasms and assigned a noncompensable disability rating effective July 19, 2004. The RO also denied service connection for a bilateral hip disorder. During the pendency of this claim, by rating action dated in September 2005, the RO determined that the veteran's service- connected facial spasms warranted an increased disability rating of 10 percent, effective as of July 19, 2004. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, and the issue therefore remains in appellate status. The issue of service connection for a bilateral hip disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent medical evidence of record shows that the veteran's facial spasms are productive of severe symptoms. CONCLUSION OF LAW The criteria for an initial 30 percent disability rating for facial spasms have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8103 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 or other law should be undertaken. However, given the results favorable to the veteran, further development under the VCAA or other law would not result in a more favorable result for the veteran, or be of assistance to this inquiry. In the decision below, the Board grants the claim of an increased disability rating for the service-connected facial spasms. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Increased disability rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2007), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2007). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). There is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown, 7 Vet. App. 55, 58 (1994) -- that the present level of the veteran's disability is the primary concern in a claim for an increased rating and that past medical reports should not be given precedence over current medical findings -- does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126. Instead, where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The veteran's service-connected facial spasms have been rated by the RO under the provisions set forth in Diagnostic Code 8103 which provides the rating criteria for a convulsive tic. Under this diagnostic code provision, a 10 percent disability rating is assigned for a disability manifested by moderate symptoms, and the maximum 30 percent disability rating is assigned for a disability manifested by severe symptoms. Words such as "mild", "moderate", and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2007). [The Board observes in passing that "moderate" is defined as "of average or medium quality, amount, scope, range, etc." See Webster's New World Dictionary, Third College Edition (1988) 871. VA outpatient treatment records dated from July 2005 to July 2006 show that the veteran had a history of a right eye problem since 2003. He was said to have a "drawing" of the right perioral area with blepharospasm versus extrinsic compression of the facial nerve. It was being treated intermittently with Botox. An eye clinic examination report dated in August 2005 revealed moderate to severe spasms of the right eye lids and right lower face. The impression was right hemifacial spasm. An eye clinic examination report dated in July 2006 revealed moderate spasms of the right eye lids and right lower face. The impression was right hemifacial spasm. A VA neurological disorders examination report dated in October 2006 shows that the veteran was said to have a sensory tic involving the right facial and occulomotor muscle groups which would occur numerous times per hour. The cranial nerves were described to have an abnormality manifested by right upper lid blephroptosis and frequent spasm of the right face. The diagnosis was right hemifacial spasm. The tic disorder was described as severe, and was said to effect the veteran's usual daily activities. A VA eye clinic examination report dated in January 2007 revealed moderate spasms of the right eye lids and right lower face. The impression was right hemifacial spasm. A VA eye examination report dated in March 2007 shows that the veteran was evaluated for his eye twitching, which was said to be getting progressively worse. Current treatment was said to be with Botox injections. The diagnosis was ride side hemifacial spasms, with associated eyelid twitching. The examiner noted that this did not effect the veteran's usual daily activities. The Board finds the symptoms as reported by the veteran to be credible. Additionally, the objective medical evidence shows that in August 2005 the veteran's spasms were described as moderate to severe; in July 2006 and January 2007, they were described as moderate; and in the October 2006 VA neurological disorders examination they were described as severe. Additionally, the March 2007, the VA eye examiner indicated that the veteran's symptoms had been getting progressively worse. The evidence shows that the veteran's sensory tic occurs numerous times per hour and that the symptoms have ranged from moderate to severe. The Board finds that as these episodes have been intermittently described as being severe in nature, a 30 percent disability rating is warranted pursuant to the rating criteria under Diagnostic Code 8103. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The Board has considered whether any alternate diagnostic code provisions would allow for the assignment of a greater disability rating, however, the remaining diagnostic code provisions listed within the schedule of ratings for this type of disorder are not applicable and would not provide the veteran with a disability rating greater than that assigned by virtue of this decision. In conclusion, as the evidence of record demonstrates severe symptoms associated with the veteran's facial spasms, the Board finds that the criteria for an initial 30 percent schedular rating, and not higher, have been met, and the veteran's claim is granted to this extent. As the veteran's symptoms have generally remained constant throughout the course of the period on appeal, staged ratings are not warranted. Finally, the Board finds that there is no showing that the veteran's facial spasms reflect so exceptional or so unusual a disability picture as to warrant a higher rating on an extra-schedular basis. The condition is not productive of marked interference with employment, i.e., beyond that contemplated in the 30 percent rating, or required any, let alone, frequent periods of hospitalization, and has not otherwise rendered impractical the application of the regular schedular standards. In the absence of these factors, the criteria for submission for assignment of an extra-schedular rating are not met. Thus, the Board is not required to remand this claim for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial disability rating of 30 percent for facial spasms is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND Unfortunately, with regard to the issue of service connection for a bilateral hip disorder, appellate review of the veteran's claim at this time would be premature. Although the Board sincerely regrets the additional delay, a remand in this matter is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. The veteran asserts that he had a pre-existing bilateral hip disorder which was aggravated by his second period of active service. Private outpatient treatment records dated from 1998 to 2003 show intermittent treatment for symptoms associated with a bilateral hip disorder. A Physical Profile report dated in February 2003 shows that upon activation, the veteran was not to deploy as a result of severe osteoarthritis of the hips. He had a permanent profile which limited his running. Army hospital treatment records dated in May 2003, June 2003, and July 2003 show that the veteran was seen for reported chronic bilateral hip pain. The assessment was severe degenerative joint disease of both hips. A consultation report dated in July 2003 also revealed an assessment of severe bilateral hip osteoarthritis. Subsequent to service, private hospital treatment records dated in September 2004 and January 2005 show that the veteran underwent arthroplasty of the right and left hips, respectively. To establish service connection for a claimed disability, the evidence must demonstrate that a disease or injury resulting in current disability was incurred during active service or, if pre-existing, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). If the veteran has a condition that pre-existed service, the issue becomes whether the disease or injury was aggravated during service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. As there is competent medical evidence that the veteran has a current bilateral hip disorder, persistent symptoms associated with a hip disorder, and an indication that such symptoms may be associated with the veteran's active service, the Board finds that a medical examination is necessary to make a decision on the claim. See Charles v. Principi, 16 Vet. App. 370 (2002); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c)(4) (2007). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the veteran for an appropriate VA orthopedic examination to determine the nature and etiology of his asserted bilateral hip disorder. The entire claims file and a copy of this Remand must be reviewed by the examiner in conjunction with conducting the examination. All necessary tests and studies should be performed, and all findings must be reported in detail. Based on examination findings, as well as a review of the record showing treatment for bilateral hip complaints, the examiner is requested to render an opinion as to the following: (a) Whether the veteran has a current bilateral hip disorder; (b) Whether any bilateral hip disorder identified during the veteran's period of active service existed prior to his entrance into active service, and if so, the approximate date of onset of any such disorder. (c) If a bilateral hip disorder pre- existed the veteran's period of active service, did any such disorder increase in severity during such period of active duty? In answering this question, the examiner should specify whether the veteran sustained temporary or intermittent symptoms resulting from service; or whether there was a permanent worsening of the underlying pathology of any such condition due to or during service, resulting in any current disability. (d) If any bilateral hip disorder increased in severity during service, was that increase due to the natural progression of the disease? The examiner is directed to reconcile any opinions which may be inconsistent with the results of the current findings on examination. A complete rationale must be given for all opinions and conclusions expressed. 2. The RO/AMC will then review the veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The RO/AMC will then readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a Supplemental Statement of the Case, containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case is to be returned to the Board, following applicable appellate procedure. The veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs