Citation Nr: 1120801 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 08-12 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable rating for blepharospasm of the left eyelid. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from July 1982 to March 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing before the undersigned Acting Veterans Law Judge was held at the RO in January 2011. The hearing transcript has been associated with the claims file. The issues of service connection for traumatic brain injury, hearing loss, tinnitus, and diminished visual acuity and an increased rating for left eyebrow scar have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See December 2010 statements; January 2011 hearing transcript. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT The symptoms and impairment caused by the blepharospasm most nearly approximates moderate incomplete paralysis of the seventh cranial nerve. CONCLUSION OF LAW The criteria for a 10 percent rating but no higher for blepharospasm of the left eyelid have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.124, 4.124a, Diagnostic Code 8207 (8207). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases such as this where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. Nevertheless, the record reflects that the appellant was provided notice of the effective date and disability ratings in March 2006, prior to the initial award of service connection, and notice specific to the claim of increased rating in June 2008, and the claim was readjudicated in November 2008 supplemental statements of the case. Mayfield, 444 F.3d at 1333. VA has obtained service medical records, assisted the Veteran in obtaining evidence, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file, including those associated with the Veteran's claim for Social Security Administration (SSA) disability benefits, and the appellant has not contended otherwise. VA afforded the appellant examinations which are adequate for ratings purposes: the examiners elicited medical histories from the Veteran and conducted the appropriate examination, and the Veteran has not contended that either examination was inadequate or that his condition has changed (i.e. worsened) since the 2009 examination was conducted. The Board acknowledges that some VA examiners did not review the claims file. However, each examiner elicited a medical history from the Veteran, which was consistent with that contained in the claims folder; hence, consideration of the current disability status was made in view of the Veteran's medical history, as required by 38 C.F.R. §§ 4.1 and 4.2. As this matter is a claim of increase rather than of service connection, and as the Veteran provided a medical history which was an adequate substitute for a review of the medical record, the Board finds that the examinations are adequate for rating purposes. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.14. In an appeal of an initial rating (such as in this case), consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will thus consider entitlement to "staged ratings." The Veteran has reported that his scar on his eyelid causes his eyelid to twitch and at times stick. See, e.g., October 1999 Form 9. The Veteran has also reported the existence of an irritating and burning pain, puffiness, and soreness at the site of the scar. The Veteran's blepharospasm is rated as noncompensable by analogy to Diagnostic Code (DC) 8207, which rates paralysis of the seventh cranial nerve. DC 8207 provides a 10 percent rating for moderate incomplete paralysis of the seventh cranial nerve and a 20 percent rating for severe incomplete paralysis of the seventh cranial nerve. The diagnostic code indicates that the rating was dependent on upon relative loss of innervation of facial muscles. The Board notes that the Veteran has been separately evaluated for a left eyelid scar and has been denied service connection for an acquired visual impairment and dry eye syndrome in a now final decision. See October 1999 and June 2000 rating decisions; April 2008 statement (withdrawing appeal of service connection for acquired visual impairment/dry eye syndrome). As such, the Board will limit its analysis to whether a compensable rating is warranted based on the blepharospasm. An October 1999 VA treatment record reflects the Veteran's history of fluttering of his left eye for three days. The Veteran also reported that sometimes his eyelids stuck together and that he had slight pain in the eyelid. The Veteran was referred to the VA eye clinic, where he was seen on two occasions in October 1999. The eye clinic treatment records reflect the Veteran's histories of irritation and stabbing/burning sensation in the left eye and swollen left superior temporal eyelid. The Veteran also reported that the vein at the superior-temporal lid margin pulsated and bothered him. Examination revealed trace blepharitis bilaterally without significant lid swelling. The Veteran was diagnosed with trace blepharitis and dry eyes. A March 2000 VA ophthalmology record reflects findings of small meniscus on the bilateral eyelids/eyelashes. There was no ptosis. After examination, the Veteran was diagnosed with dry eye syndrome. A June 2000 VA optometry record reflects the Veteran's history of a pulsating vein in the left superior-temporal eyebrow. Examination of the eyelids and lashes was clear. A June 2001 ophthalmology record reflects the Veteran's history of blepharospasm two to three times each day, which was sometimes associated with difficulty opening and closing the left eyelid. Examination revealed no ptosis, dermatochalasis, or blepharochalsis. The lids fully opened with full excursion. There was complete lid closure and normal lid crease. The scar was well-healed. No blepharospasm was evident or elicited. The Veteran was diagnosed with status-post trauma to left eyebrow and blepharospasm left upper eyelid. A February 2002 VA ophthalmology record reflects the Veteran's history of quivering with spastic closure of the eyelid which was associated with pain. Examination revealed a healed laceration along the browline laterally and scruff/collarettes bilaterally. After examination, the Veteran was diagnosed with blepharospasm and blepharitis. The record notes that the examiner and the Veteran discussed the possibility of Botox injections. A September 2002 VA ophthalmology record reflects the Veteran's history that he had started Botox treatments with good results. The Veteran indicated that the blepharospasm was only occurring sporadically instead of daily. After examination, the Veteran was diagnosed with blepharospasm, well controlled with periodic Botox injections. A February 2003 private treatment record reflects the Veteran's history of blepharospasm two to five times daily, lasting 15 to 30 minutes. The record indicates that the Veteran presented for a repeat injection of Botox to stop the spasm. Examination revealed normal eyelids. See February 2003 G.W.U.M.F.A. treatment records. January, March, and October 2003 VA treatment records reflect the Veteran's history of eye muscle spasm, for which he received Botox injections. A March 2003 VA neurology record also reflects the Veteran's history of ptosis of the left eyelid. The examiner noted that facial sensation was normal but the left eyelid had two to three millimeters of ptosis. A June 2004 VA treatment record reflects the Veteran's history that he had blepharospasm which was treated by Botox. The Veteran reported that he had last received a Botox injection six months earlier and that he was having increased blepharospasm that lasted from a few to 20 minutes and occurred three to four times a day. Examination revealed no blepharospasm during the visit. The Veteran was diagnosed with history of blepharospasm treated with Botox injections. He was provided a Botox injection in the orbicularis oculi muscle. An August 2004 VA examination records reflects the Veteran's history of blepharospasm which was improved by Botox injection. The examination record notes that no blepharospasm was noted during examination. A September 2006 VA examination record reflects the Veteran's history of blepharospasm of the left eyelid for which he has received Botox injections. The Veteran indicated that the spasm was not as severe as it had been in the past, reporting that it occurred approximately once a week and lasted approximately two to three minutes. He reported that the spasm had no effect on his occupation or daily activities. A November 2006 VA treatment record reflects the Veteran's history of blepharospasm of the left eye, status post Botox injection, the previous injection dating two years earlier. Examination revealed trace dermatochalasis bilaterally. The Veteran was assessed with blepharospasm of the left eye. He was provided another Botox injection in December 2006. See December 2006 VA treatment record. A September 2007 VA treatment record reflects the Veteran's history that the Botox injections had been very effective in treating his blepharospasm. The Veteran still reported episodes lasting 10 to 12 minutes, however, particularly when reading or concentrating or at the end of the day. After examination, the Veteran was diagnosed with blepharospasm. The Veteran was subsequently provided another Botox injection. An October 2007 VA examination record reveals that the Veteran continued to receive Botox injections for his blepharospasm, most recently in September 2007. The Veteran reported that he has blepharospasm three to four times a day lasting 12 to 20 minutes per episode when he did not have Botox. After examination, the Veteran was diagnosed with lid retraction/lid lag bilaterally and history of localized fasciculations temporal orbit of the left eye believed to be secondary to aberrant regeneration status-post traumatic injury. The Veteran denied any spasms since receiving a Botox injection the previous week. In a January 2008 addendum, the examiner noted that the Veteran's refractive error, dry eye symptoms, and lid lag/lid retraction were all bilateral and that the injury in service only involved the temporal left eye. The examiner stated that the focal injury could not have caused the bilateral symptoms and findings. A January 2008 VA treatment record reflects the Veteran's history that he was due for another Botox injection and that his "eyelid [was] talking off again." The treating physician noted that there was no evidence of blepharospasm. The Veteran was told to follow up if the blepharospasm increased or worsened, at which time, he would be assessed for Botox. May and June 2008 VA treatment records reflect the Veteran's history that the blepharospasm had been bothering him more recently, though it was still intermittent. The Veteran reported that during one recent episode, it caused him significant discomfort and difficulty opening the eyelid. Examination in June 2008 revealed fairly prominent skin creases/lines lateral to and just beneath the left lateral canthus which could be indicative of blepharospasm. Spasm was not observed. There was a mild flutter of the eyelids but no full contracture. After examination, the Veteran was assessed with blepharospasm. Another Botox injection was provided in June 2008. A November 2008 VA treatment record indicates that the Veteran presented for follow-up after receiving a Botox injection in June 2008. The record reflects the Veteran's history of bilateral blepharospasm which had improved but still occurred intermittently since the June 2008 Botox injection. The Veteran added that his symptoms mainly occurred in the morning. After examination, the Veteran was assessed with benign essential blepharospasm. A January 2009 VA treatment record reveals the Veteran's history of two to three episodes of blepharospasm each day, lasting for 20 minutes. The Veteran reported that his condition was "not worse or better." Examination revealed no evidence of fasciculation, symmetric eyelid creases, and no evidence of change of skin around the bilateral orbicularis. After examination, the Veteran was assessed with history of benign essential blepharospasm, currently stable. The record indicates that because the Veteran was not very symptomatic at that time, lubricants were supported over Botox for treatment. A May 2009 VA examination record reflects the Veteran's history of occasional twitching of the left eye. The examiner noted that the Veteran did not have any evidence for blepharospasm and that he did not notice frequent twitching. Examination revealed normal lid opening and closure and no cranial nerve dysfunction. No functional limitation was noted. November 2009 VA treatment records reflect the Veteran's history that his blepharospasm was much better. He indicated that he was using lubricant at night and in the morning. Examination revealed no symptoms of blepharospasm. A February 2010 VA eye clinic record reflects no complaints related to the blepharospasm. After consideration of the evidence, particularly the Veteran's competent and credible statements and testimony, the Board finds a 10 percent rating, but no higher, is warranted for the Veteran's blepharospasm. The Board acknowledges that the medical evidence does not reflect any findings of blepharospasm and that the Veteran's is consistently found to be neurologically normal with respect to the cranial nerves. The Veteran is competent to report the nature and frequency of his blepharospasm, however, and the Board finds his histories are credible. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994). In this case, based on the reported frequency and duration of the episodes of blepharospasm, the absence of evidence of occupational impairment or significant functional impairment due to the blepharospasm, and the use of Botox injections/lubricants to manage the symptoms, the Board finds the blepharospasm results in impairment analogous to moderate incomplete paralysis of the seventh cranial nerve. Thus, the Board finds that a 10 percent rating, but no higher, is warranted under DC 8207. The Board has considered whether a higher or separate rating might be warranted based on occupational impairment, but finds that no such rating is applicable as the record contains no findings or suggestions of occupational impairment secondary to the blepharospasm. See Thun v. Peake, 22 Vet.App. 111 (2008). ORDER A 10 percent rating, but no higher, for blepharospasm of the left eyelid is granted. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs