Citation Nr: 1207855 Decision Date: 03/01/12 Archive Date: 03/16/12 DOCKET NO. 10-32 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to a compensable evaluation for service-connected residuals of a mixed tumor of the parotid gland with scar. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to December 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's service-connected residuals of a mixed tumor of the parotid gland with scar is manifested by decreased sensation on the right side of the face, drooling, dry mouth and seepage at the surgical site. 3. The Veteran's surgical scar is nontender and none of the characteristics of disfigurement are demonstrated. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 10 percent evaluation, but no more, for service-connected residuals of a mixed tumor of the parotid gland with scar are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.124a, Diagnostic Code 8207 (2011). 2. The criteria for a separate compensable evaluation for the Veteran's scar associated with his service-connected mixed tumor of the parotid gland are not demonstrated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (the VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his/her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran submitted a claim for an increased evaluation in May 2009. The Veteran was sent a letter in June 2009 which stated that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The letter advised the Veteran what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The letter also informed him what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the Veteran. The June 2009 letter also provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation. Specifically, the Veteran was informed in the letter of types of evidence that might show such a worsening, including statements from a doctor containing the physical and clinical findings; results of laboratory tests or x-rays; the dates of examinations and tests; and statements from other individuals who were able to describe from their knowledge and personal observations in what manner the disability had become worse. The June 2009 letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. The letter also contained information about assigning effective dates and the criteria for an increased evaluation under Diagnostic Code 8209. Since the June 2009 letter was sent to the Veteran prior to the initial adjudication of his claim in August 2009, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim for an increased evaluation for service-connected residuals of a mixed tumor of the parotid gland with scar, including private and VA treatment records and by affording him VA examination and obtaining an addendum. Concerning this, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2009 VA examination and July 2009 addendum are adequate. While the June 2009 VA examination report reflects that the Veteran's VA claims file was not available for review, the July 2009 addendum was prepared by the VA examiner after the claims file was present and reviewed. As such, the VA examiner's statements concerning the Veteran's service-connected disability were based on a physical examination and claims file review and provide medical information needed to address the rating criteria relevant to this case. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case with regard to obtaining a VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also 38 C.F.R. § 4.2 (2011). Further, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Additionally, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim decided herein. VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a statement of the case (SOC), which informed them of the laws and regulations relevant to his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Increased Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Discussion The Veteran's service-connected residuals of a mixed tumor of the parotid gland with scar are currently evaluated noncompensably (zero percent ) disabling under 38 C.F.R. §§ 4.114, 4.124a, Diagnostic Codes 7299 - 8209. 38 C.F.R. § 4.27 (providing that unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99".) See 38 C.F.R. § 4.20 (2011). Diagnostic Codes 8209, 8309 and 8409 address the ninth (glossopharyngeal) cranial nerve. 38 C.F.R. § 4.124a (2011). Under Diagnostic Code 8209, a 10 percent evaluation is warranted for moderate incomplete paralysis of the nerve, a 20 percent evaluation is warranted for severe incomplete paralysis of the nerve, and a 30 percent evaluation is warranted for complete paralysis of the ninth cranial nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8209 (2011). The evaluation is dependent upon relative loss of ordinary sensation in mucous membrane of the pharynx, fauces, and tonsils. Neuralgia of that nerve is rated under Diagnostic Code 8409 as for paralysis, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Neuritis of the nerve under Diagnostic Code 8309 may be rated as for paralysis, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The Board notes that words such as "moderate" and "severe" are not defined in the VA Rating Schedule. 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 (2011). Although the words "moderate" and "severe" are not defined in VA regulations, "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc." and "severe" is defined as "extremely intense." See Webster's New World Dictionary, Third College Edition (1988), pgs. 1038, 871, and 1071. The Veteran was involved in a motor vehicle accident during his service which resulted in injuries to the right side of his face. After separation from service, the Veteran developed a lump on the right side of his face which continued to enlarge. In April 1959, the Veteran underwent a total parotidectomy due to a "benign mixed tumor" of the right parotid gland. See April 1959 surgery and pathology reports. In an August 1959 rating decision, the RO established service connection for residuals of a mixed tumor of the parotid gland with scar. In a June 2009 statement, the Veteran asserted that he suffered from pain in the right ear and jaw area, a "tightening" sensation of the skin on the right side of his face and seepage with a "foul odor" at the operation site. In January 2010, the Veteran's representative conveyed that the Veteran experienced loss of sensation of the right side of his face and drooling on the right side of his mouth secondary to his service-connected disability. The June 2009 VA examination and July 2009 addendum reflect the Veteran's complaints of dry mouth, loss of sensation of the right side of his face, seepage from the surgery site with "foul odor" and tingling on the right side of the face. Upon physical examination, the examiner observed a skin fold behind the right ear which was likely the result of surgery. There were no signs of infection, yeast or drainage behind the right ear, but the examiner noted that sensation was slightly decreased at the front of his right ear and face. Specifically, the Veteran was able to feel light touch sensation, but he reported that it felt "different" on the right side of his face as compared to the left. The VA examiner noted that the Veteran's seventh cranial nerve was "grossly intact." After a review of the April 1959 surgery report, the VA examiner noted that the tumor was located "below the facial nerve in the deep portion of the parotid gland," and that the seventh cranial (facial) nerve was preserved. See the July 2009 addendum. In light of the evidence that the Veteran's April 1959 surgery involved the seventh cranial (facial) nerve, the Board will consider the Diagnostic Codes which apply to impairment of that nerve. 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 Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Codes 8207, 8307 and 8407 address the seventh (facial) cranial nerve. 38 C.F.R. § 4.124a (2011). The Board notes that the criteria relating to disorders of the seventh and ninth cranial nerves are identical. Under Diagnostic Code 8207, a 10 percent evaluation is warranted for moderate incomplete paralysis of the nerve, a 20 percent evaluation is warranted for severe incomplete paralysis of the nerve, and a 30 percent evaluation is warranted for complete paralysis of the ninth cranial nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8207 (2011). The evaluation is dependent upon relative loss of ordinary sensation in mucous membrane of the pharynx, fauces, and tonsils. Neuralgia of that nerve is rated under Diagnostic Code 8407 as for paralysis, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Neuritis of the nerve under Diagnostic Code 8307 may be rated as for paralysis, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. In light of the Veteran's subjective complaints of drooling, a "tightening" sensation of the skin around the right ear, seepage with foul odor from the surgical site and dry mouth, and the VA examiner's observations of decreased sensation around the right ear and right side of the face, the Board concludes that the symptomatology associated with the Veteran's service-connected residuals of a mixed tumor of the parotid gland with scar most closely approximate the criteria for a 10 percent evaluation under Diagnostic Code 8207. The Board has considered whether an even higher evaluation for the Veteran's service-connected disability is for assignment; however, there is no evidence in the Veteran's VA claims file which demonstrates symptomatology congruent with severe incomplete paralysis of the seventh cranial nerve. The Board has also considered whether a separate evaluation may be assigned for the Veteran's surgical scar as per the Court's holding in Esteban. The June 2009 VA examiner described the scare as nontender and extending from the front of the right external ear to behind the ear. See the June 2009 VA examination report. The criteria for rating scars were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805). T he amendment applies to all applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 -54710 (Sept. 23, 2008); see also 38 C.F.R. § 4.118 (2011). Since the Veteran's claim for an increased evaluation was received by VA in May 2009, only the revised criteria are applicable to the Veteran's claim. Under the revised Diagnostic Code 7800, burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck warrant a 10 percent rating with one characteristic of disfigurement. A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or 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 rating is warranted with 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 rating is warranted with 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. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: Scar is 5 or more inches (13 or more cm.) in length. Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar is elevated or depressed on palpation. Scar is adherent to underlying tissue. Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.). Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under the revised Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Under the revised Diagnostic Code 7805, other scars (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2011). The Board notes that Diagnostic Codes 7801 and 7802 are not applicable to scars of the head, face or neck. However, in the present case, the Veteran's scar does not demonstrate any of the characteristics of disfigurement and it is nontender. See the June 2009 VA examination and July 2009 addendum. Accordingly, the criteria for a separate 10 percent evaluation for the Veteran's surgical scar are not met. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected residuals of a mixed tumor of the parotid gland with scar is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are evaluations available under multiple diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected residuals of a mixed tumor of the parotid gland with scar under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability evaluation based on individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. The record indicates that the Veteran is retired and there is no allegation that his service-connected disability has resulted in unemployment. Therefore, consideration of a TDIU is not warranted. In sum, with regard to the Veteran's service-connected residuals of a mixed tumor of the parotid gland with scar, the demonstrated symptomatology more closely approximates the criteria for a 10 percent evaluation, but no more, under Diagnostic Code 8207. This is true throughout the pendency of the appeal. See Hart and Francisco, both supra. ORDER Entitlement to a 10 percent evaluation for service-connected residuals of a mixed tumor of the parotid gland with scar, is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs