Citation Nr: 0814964 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 02-05 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD), to include consideration of an effective date of prior to November 30, 2005, for entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). . 2. Entitlement to an increased evaluation for residuals of a shell fragment wound of the face, to include consideration of a separate evaluation based upon limitation of masticatory function, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from February 1965 to February 1968 and from September 1970 to January 1973, with service in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO granted service connection for PTSD, with an initial 30 percent evaluation assigned; and denied entitlement to an evaluation in excess of 10 percent for residuals of a shell fragment wound of the face. The Board addressed both claims, as well as five additional issues, in an August 2005 decision. In that decision, the Board increased the PTSD initial evaluation to 70 percent but denied a higher evaluation for residuals of a shell fragment wound of the face. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), insofar as an even higher evaluation for PTSD had not been assigned and as claim for an increased evaluation for the residuals of a shell fragment wound of the face had been denied. The remaining issues were not incorporated in the November 2006 brief of the veteran's representative. In a reply brief dated in March 2007, the VA General Counsel argued that a remand was required because (1) the Board did not consider and address whether the evidence supported a total disability rating under 38 C.F.R. § 4.16(a), in terms of the PTSD claim; and (2) the Board did not address all potentially applicable laws and regulations to determine whether a separate evaluations were warranted for both disfigurement and functional impairment due to the shell fragment wound of the face. The veteran's representative furnished a reply brief in May 2007, in which it was asserted that the Board's decision should be reversed to the extent that a 100 percent evaluation for PTSD was not assigned, and, despite the submission of an adjudication awarding TDIU (from a January 2006 rating decision, effective as of November 30, 2005), there remained an issue of the effective date. The Court's decision, dated in October 2007 and issued as an Order in November 2007, set aside the Board's decision and remanded the case for additional adjudication. The Court noted that "the veteran's rating increase to 70% raises the potential applicability of 38 C.F.R. § 4.16(a) (2007), which the Board neglected to discuss." The Court further noted that the applicability of 38 C.F.R. §§ 4.118 (Diagnostic Code 7805) and 4.73 (Diagnostic Code 5325) had not been adequately addressed. Notably, the Court rejected the argument of the veteran's representative for a reversal. Upon return of the case, the Board has carefully considered whether a remand to the RO is appropriate or whether a Board adjudication at the present time is in order. In this regard, the Board notes that the Court's decision to remand was predicated on the need for application of specific Part 4 regulations, with no deficiencies in the medical evidence of record cited. The Board further observes that no allegation has been made that the veteran's disabilities have worsened since his last VA examinations in November 2004 or that there exists additional relevant evidence that VA has not obtained to date. Given these considerations, particularly in view of the partially favorable dispositions below and the veteran's February 2008 response to a Board inquiry that he had no further evidence to submit, the Board finds that an additional remand to the agency of original jurisdiction would not benefit the veteran but would only result in unnecessary delay. As such, he will not be prejudiced by the Board's action below. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board has partially recharacterized the issues on appeal in view of the Court's decision, as indicated on the front page of this decision and as more fully described in the REASONS AND BASES section below, to provide the veteran with the fullest possible consideration in the adjudication of his appeal. Finally, the Board notes that, in the aforementioned August 2005 decision, the Board remanded the claim of entitlement to an initial disability rating in excess of 10 percent for recurrent tinnitus prior to June 13, 2003 (to include whether a separate rating for each ear was warranted) for issuance of a Statement of the Case pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). While a Statement of the Case was issued in October 2005, the veteran never responded to this issuance, and this matter is not presently before the Board on appeal. FINDINGS OF FACT 1. From June 30, 1999 through November 16, 2004, the veteran's PTSD was not shown to be productive of total social and occupational impairment, with a VA examiner describing the disability as moderate in degree. 2. Evidence dating from November 17, 2004 supports a finding of total occupational, though not social, impairment as a consequence of the veteran's PTSD, indicating that the disability has rendered him unable to secure or follow a substantially gainful occupation from that date. 3. The veteran's facial scarring, a residual of his shell fragment wound of the face, is no more than moderate in degree, with total scarring measuring three inches and some swelling. 4. The veteran has been shown to have symptomatology commensurate to limitation of mastication as a consequence of his shell fragment wound of the face. CONCLUSIONS OF LAW 1. The criteria for an initial schedular evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130 (Diagnostic Code 9411) (2007). 2. The criteria for an earlier effective date of November 17, 2004 for the grant of TDIU have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.400, 4.16(a) (2007). 3. The criteria for an evaluation in excess of 10 percent for scarring as a residual of a shell fragment wound of the face have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.118, (Diagnostic Code 7800) (2007); 38 C.F.R. § 4.118 (Diagnostic Code 7800) (2001). 4. The criteria for a separate 10 percent evaluation for limitation of mastication as a residual of a shell fragment wound of the face have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.73 (Diagnostic Code 5325), 4.118 (Diagnostic Code 7805) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued a VCAA letter meeting the specific requirements of C.F.R. § 3.159(b)(1) in March 2004. While this letter was issued subsequent to the appealed rating decision, the veteran's case was subsequently readjudicated in a March 2005 Supplemental Statement of the Case, consistent with the Mayfield line of decisions. VA's requirements in regard to increased rating cases, where service connection and a disability evaluation had been previously established, were further detailed in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). As the facial scarring claim (though not the PTSD claim, which concerns an initial evaluation) concerns an existing evaluation, Vazquez-Flores must be considered in regard to that claim. In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that: (1) VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the Board finds that the March 2004 VCAA letter was in substantial compliance with the first and fourth requirements of Vazquez-Flores to the extent that the veteran was notified that he needed to submit evidence of worsening that could include specific medical and laboratory evidence. The veteran was also encouraged to submit his own statement, describing his symptoms, their frequency and severity, and any other additional "disablement." For this purpose, a VA Form 21-4138 (Statement in Support of Claim) was enclosed. The Board is nevertheless aware that the March 2004 VCAA letter did not provide the type of notification set forth in the second and third requirements of Vazquez-Flores. As such, the veteran has received inadequate notice, and the Board must proceed with an analysis of whether this error prejudiced him. See Sanders v. Nicholson, 487 F.3d at 889. In the present case, the Board is fully satisfied that the absence of the type of notification set forth in the second and third requirements of Vazquez-Flores in the March 2004 VCAA letter was not prejudicial to the veteran. The two briefs submitted by his representative in support of his Court appeal clearly reflect a familiarity with the applicable diagnostic criteria, with citations to relevant diagnostic codes under 38 C.F.R. §§ 4.73, 4.118, and 4.150. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). These briefs further reflect that the veteran's representative had extensively reviewed his claims file, including the objective findings from VA examination reports from September 1999 and November 2004 and the applicable diagnostic code sections listed in the August 2001 and March 2005 Supplemental Statement of the Case (notably, portions of 38 C.F.R. § 4.118 were revised during the interim period, and the veteran was notified of those revisions). The Board thus finds that a reasonable person could have been expected to understand in this case what was needed to substantiate the claim. For all of these reasons, the Board finds that any notice errors with regard to the second and third requirements of Vazquez-Flores are not prejudicial, inasmuch as they did not affect the "essential fairness of the adjudication" of the facial scarring claim. Sanders v. Nicholson, 487 F.3d at 889. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Such notification was provided in a March 2006 letter. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. The Board also notes that the veteran has been afforded comprehensive VA examinations in conjunction with this appeal, addressing the disorders at issue. In summary, all relevant facts have been properly developed in regard to the veteran's claims, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as with the PTSD claim, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, as with the facial scarring claim, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. III. PTSD In the present case, the veteran's initial 70 percent evaluation for PTSD has been effectuated as of June 30, 1999, the initial date of claim. The questions for the Board are whether a higher schedular evaluation of 100 percent is warranted, in view of Fenderson; and whether an effective date prior to November 30, 2005 for the grant of TDIU is warranted. The Board has first considered the question of whether a higher schedular evaluation is warranted. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 70 percent disability evaluation is warranted for PTSD manifested by occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted for PTSD which is productive of total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for the names of close relatives, own occupation, or own name. During the pendency of this appeal, the pertinent evidence of record has been limited, consisting of VA examination reports from April 2001 and November 2004 and a private medical record from January 2006. The Board has reviewed the April 2001 VA examination report but does not find that any of the symptoms listed in the criteria for a 100 percent evaluation for PTSD were manifest at that time. During that examination, the veteran reported interrupted sleep, flashbacks, irritability, diminished interest in recreational activities, and avoidance of activities that would promote recall of war experiences. He also described thinking "that his life is not worth living" but noted that he could not attempt suicide again because of his family and friends. The objective examination was largely unremarkable, except for his report of his mood as a "4" on a scale from one to ten. While the examiner assigned a Global Assessment of Functioning (GAF) score of 50, which under the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV) represents serious social and industrial impairment, such as no friends or an inability to keep a job, and also noted that the veteran was unemployed, the degree of PTSD was separately described as moderate. This description of occupational impairment falls well short of total occupational impairment, and, accordingly, there is no basis for a 100 percent evaluation for PTSD for the period prior to November 17, 2004, the date of the next examination. The November 17, 2004 VA examination does, however, indicate a substantially worsening disability picture in terms of occupational impairment. While the examiner did not extensively discuss the veteran's symptoms upon examination, he noted that the veteran's PTSD had "deteriorated beyond the level at which it now stands." The examiner rendered an Axis I diagnosis of chronic PTSD that was moderately severe and approaching severe, especially with presently enforced idleness. He also noted that the veteran, who was married at the time of the examination and spoke "glowingly" of his wife, "does not have an abundant social life, rather the opposite." Finally, the examiner rendered a GAF score of 44 and indicated that he suspected "a nil prognosis" with respect to re-employment, although there was a remote hope for a more ordered and salubrious life if the veteran considered pursuing and remained compliant with psychopharmaceutical medications and possibly counseling. The examiner's findings as to employability are consistent with a January 2006 statement from the veteran's family physician, who reviewed the claims file and found that the veteran was currently unable to maintain gainful and substantial employment because of his PTSD and other medical problems. Rather, he was found to be totally and permanently disabled. This evidence, however, does not indicate total social impairment along with total occupational impairment, as required under the criteria for a 100 percent evaluation. There is no suggestion that the veteran's social impairment is more than moderately severe-to-severe in degree, and he was noted to speak "glowingly" of his wife during his November 2004 VA examination. Given this and the absence of the remaining criteria under Diagnostic Code 9411 for a 100 percent evaluation, the Board finds that a higher initial schedular evaluation is not warranted. Also, the veteran has submitted no evidence showing that his PTSD has markedly interfered with his employment status beyond that interference contemplated by the assigned schedular evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during this time period. As such, the Board is also not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra- schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). See also Colayong v. West, 12 Vet. App. 524, 531 (1999) (there "are several avenues through which an appellant may obtain a 100% disability rating," including a schedular rating, an extra-schedular rating, and TDIU). That notwithstanding, the November 17, 2004 VA examination represents the first evidence of record indicating that the veteran's PTSD essentially precluded him from securing or following substantially gainful employment, a finding not reflected in the March 2001 report. Under 38 C.F.R. § 4.16(a), a total disability rating may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. For this reason, the Board finds that the effective date for the grant of TDIU should be changed from November 30, 2005 to November 17, 2004, approximately one year earlier. See 38 C.F.R. § 3.400(o)(2) (in cases involving increases, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim). Overall, the evidence does not support an initial schedular evaluation in excess of 70 percent for PTSD, and to that extent the appeal is denied. The evidence does, however, support an earlier effective date of November 17, 2004 for the grant of TDIU, and to that extent the appeal is granted. 38 C.F.R. § 4.7. IV. Facial scarring The RO has evaluated the veteran's residuals of a shell fragment wound of the face at the 10 percent rate under 38 C.F.R. § 4.118, Diagnostic Code 7800. During the pendency of this appeal, the diagnostic criteria for evaluating skin disorders, including Diagnostic Code 7800, were substantially revised. These revisions were effectuated as of August 30, 2002. Under the now-deleted provisions of 38 U.S.C.A. § 4.118, Diagnostic Code 7800 (2001), effective through August 29, 2002, a zero percent evaluation was warranted for slight scars of the head, face, or neck. A 10 percent evaluation contemplated moderate and disfiguring scars. A 30 percent evaluation was in order for severe scars, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles. A 50 percent evaluation was warranted for scars resulting in complete or exceptionally repugnant deformity of one side of the face, or marked or repugnant bilateral disfigurement. A note accompanying the now-deleted provisions of Diagnostic Code 7800 indicates that, when in addition to tissue loss and cicatrisation, there was marked discoloration, color contrast, or the like, the 50 percent evaluation could be increased to 80 percent, the 30 percent to 50 percent, and the 10 percent to 30 percent. The most repugnant, disfiguring conditions, including scars and diseases of the skin, could be submitted for central office rating, with several unretouched photographs. Under the revised provisions of 38 U.S.C.A. § 4.118, Diagnostic Code 7800, effective from August 30, 2002, eight "characteristics of disfigurement" are set forth for evaluation purposes. These include: (1) a scar of five or more inches (13 or more cm.) in length; (2) a scar of at least one-quarter inch (0.6 cm.) wide at the widest part; (3) surface contour of the scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Correspondingly, a minimum 10 percent evaluation is warranted for scars of the head, face, or neck with one characteristic of disfigurement. A 30 percent evaluation is assigned in cases of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or a paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. A 50 percent evaluation is warranted in cases of visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement. An 80 percent evaluation is warranted in cases of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with six or more characteristics of disfigurement. In reviewing the veteran's September 1999 and November 2004 VA examination reports, the Board does not find evidence of scarring that would support a higher evaluation under either set of criteria. The scars as noted in the September 1999 VA examination include a one-inch scar from the right nare to the right corner of the lip, a one-inch scar from the right outer corner of the lip towards the right ear, and slight swelling above the right one-third of the upper lip. The November 2004 VA examination report indicates that the entire length of scarring was three inches, with only "minimal disfigurement" consisting of slight asymmetry of the corners of the upper lip. This degree of disfigurement is better described as moderate than as severe in degree, and the only "characteristic of disfigurement" would appear to be the slight swelling, consistent with surface contour of the scar elevated or depressed on palpation (as also shown by photographs from November 2004). In its November 2007 Order, however, the Court clearly directed VA to consider the applicability of 38 C.F.R. §§ 4.118 (Diagnostic Code 7805) (e.g., a scar resulting in limitation of function of an affected part) and 4.73 (Diagnostic Code 5325). Particularly as the General Counsel in its March 2007 brief cited to Esteban v. Brown, 6 Vet. App. 259, 261 (1994) for the proposition that all disabilities, including those arising from a single disease entity, are to be rated separately with the ratings combined, the Board finds that consideration for a separate evaluation under Diagnostic Code 5325 will not violate 38 C.F.R. § 4.14, which indicates that pyramiding (e.g., the evaluation of the same disability under various diagnoses) is to be avoided. Under Diagnostic Code 5325, a minimum 10 percent evaluation, but not more, is assigned in cases of interference to any extent with mastication. The Board observes that the findings in this case are commensurate with such interference, including swelling from the September 1999 VA examination, comments about drooling when eating soup or drinking a beverage from the November 2004 VA examination, and photographs from that examination confirming asymmetry with raising of the left upper lip from the date of the later examination. For all of these reasons, the Board finds that the appropriate disposition would be to allow for a separate 10 percent evaluation for limitation of function of the upper lip under Diagnostic Code 5325. Diagnostic Code 5325 also lists other potentially applicable code sections, including Diagnostic Code 7800 and 38 C.F.R. § 4.124a, Diagnostic Code 8207, which concerns paralysis of the seventh (facial) cranial nerve. The General Counsel also cited to 38 C.F.R. § 4.150, concerning dental and oral conditions, in its March 2007 reply brief. Given the absence of paralysis (although a "paresthesia" was noted without further elaboration upon examination in September 1999) or temporomandibular findings, however, the Board does not find these criteria would provide a basis for an evaluation in excess of 10 percent. The Board also finds that, while assignment of a separate evaluation under Diagnostic Code 5325 would not cause "pyramiding," a further separate evaluation on the basis of neurological or temporomandibular findings would constitute "pyramiding" since all of these sections would concern the function of mastication and, in essence, the same disability. 38 C.F.R. § 4.14. Again, the Board has also considered 38 C.F.R. § 3.321(b)(1). However, as the veteran has submitted no evidence showing that his service-connected facial disabilities markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, and as there is also no indication that these disorders have necessitated frequent periods of hospitalization during the pendency of this appeal, the Board is not required to remand this matter for the procedural actions concerning extra- schedular evaluations outlined in 38 C.F.R. § 3.321(b)(1). Overall, the evidence of record does not support an evaluation in excess of 10 percent for the underlying scar disability, constituting a residual of a shell fragment wound of the face. However, a separate 10 percent evaluation is warranted for limitation of mastication, also as a residual of a shell fragment wound of the face. To that extent only, the appeal is granted as to this claim. 38 C.F.R. § 4.7. ORDER Entitlement to an initial evaluation in excess of 70 percent for PTSD is denied. Entitlement to an earlier effective date of November 17, 2004 for the award of TDIU is granted. Entitlement to an increased evaluation for scarring as a residual of a shell fragment wound of the face, currently evaluated as 10 percent disabling, is denied. Entitlement to a separate 10 percent evaluation for limitation of mastication as a residual of a shell fragment wound of the face is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs