Citation Nr: 1301645 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-42 283A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a headache disorder claimed as tension headaches. 2. Entitlement to an initial, compensable disability rating for partial tongue numbness, status-post extraction of wisdom teeth. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to February 2008. She also had a five-day period of active service in April 2009. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2008 rating decision in which the RO in Salt Lake City, Utah, inter alia, denied service connection for tension headaches, but granted service connection and assigned an initial, 0 percent (noncompensable) rating. for partial tongue numbness, status post extraction of wisdom teeth,, effective March 1, 2008. In April 2009, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in September 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in November 2009. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Nashville, Tennessee, which certified the appeal to the Board. In her substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A May 2011 letter informed her that her hearing was scheduled for June 2011. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, her hearing request has been deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In January 2012, the Board characterized the appeal involving partial tongue numbness as a claim for a higher initial rating following the award of service connection (consistent with Fenderson v. West, 12 Vet. App. 119, 126 (1999) , and remanded both claims on appeal to the RO for further action. After accomplishing further action to the extent possible (as explained in more detail below), the RO returned these matters to the Board. As explained below, the Board is satisfied that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. While the Veteran has complained of experiencing headaches during service and after service, there is no competent medical evidence that the Veteran has, or ever has had, a chronic headache disorder. 3. Reportedly, service-connected partial tongue numbness is manifested by numbness and possible residual thick speech; however, there is no competent evidence to support a finding that the disability is, or since the award of service connection has been, manifested by, at least, moderate incomplete paralysis or other functional impairment to support the award of a compensable rating. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309(a) (2012). 2. The criteria for the assignment of an initial, compensable disability rating for partial tongue numbness are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.25,4.31, 4.124a, Diagnostic Code 8212 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO) Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a November 2007 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate her claims, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The November 2007 letter specifically informed the Veteran to submit any evidence in her possession pertinent to the claims on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). The November 2007 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The April 2008 RO rating decision reflects the initial adjudication of the claims after issuance of the November 2007 letter. Hence, that letter meets the content of notice requirements described in Pelegrini and Dingess/Hartman, as well as the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service and VA treatment records and the report of a November 2007 VA examination, the only examination report of record . Also of record and considered in connection with the appeal are the various written statements provided by the Veteran, and by her representative, on her behalf. The Board also finds that no additional RO action to further develop the record in connection with either claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. at 537, 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis A. Headache disorder Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran's service treatment records reflect complaints of, and treatment for, tension-type headaches. In September 2005, headaches were indicated, but there was no evidence of systemic illness. It was noted that Motrin and Tylenol provided no relief. In March 2007, headaches with an onset a week prior were indicated. It was noted that the headaches subsided during the day, but returned every night. The examiner diagnosed tension-type headaches, but noted that there were no red flags or indicators of serious underlying disease. Stress management and Motrin were recommended. Tension headaches were again noted in April 2007 and July 2007. Following service, the Veteran was afforded a VA examination in November 2007. On examination, the Veteran reported that her headaches began 5 years prior and occurred every few weeks. She reported current daily headaches and indicated that she had received migraine medication. She described the location of the headaches in the bilateral forehead above the eyes and indicated that they were dull in nature, with photophobia but no nausea or vomiting. The Veteran also denied any history of head injury, seizures or dizziness. Following physical examination, the examiner diagnosed migraine headaches by history, noting that laboratory diagnostics were "essentially" normal (emphasis added). Given the complaints and diagnosis pertaining to what appeared to be chronic headaches in service, and the Veteran's complaints of headaches continuing to date, the Board remanded the claim in January 2012 for another VA examination and medical opinion to clearly resolve the question of whether the Veteran actually has a current headache disorder, and, if so, the relationship between such current disorder and the complaints/diagnosis pertaining to headaches noted during service. Pursuant to the Board remand, the Veteran was scheduled for a VA examination in July 2012; however, she failed to report to the scheduled examination. Both the January 2012 Board remand and the May 2012 letter from the RO to the Veteran notified her that she would be scheduled for an examination in connection with her claim and further informed her of the consequences of failing to report to the examination. When entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(a). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall rated based on the evidence of record. 38 C.F.R. § 3.655(b). The Board observes that the Veteran has complained of headaches and asserted that she has a chronic headache disorder that began while on active duty. As a layperson, the Veteran is competent, as a layperson, to report that about which she has personal knowledge-to include her own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Even if the Veteran experienced headaches in service and continues to experience headaches after service, as alleged, the Board points out that pain (such as headache), alone, without evidence of underlying pathology, does not constitute a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); see also Evans v. West, 12 Vet. App. 22, 31-32 (1998). Significantly, none of the medical evidence of record reflects a finding or diagnosis of a current, chronic, headache disorder-much less, one shown to have had its onset during military service-and neither the Veteran nor her representative have presented or identified any such evidence or opinion. In short, there is no medical evidence whatsoever indicating that the Veteran has, or ever has had, a chronic headache disorder. While the VA examination scheduled in connection with the Board's remand may have yielded a medical diagnosis of other pertinent findings in this regard, the Veteran failed, without explanation, to report to that examination. Hence, the Board has no alternative but to evaluate the claim on the basis of the evidence of record. As indicated, this evidence simply is not supportive of the claim for service connection. In addition to the medical evidence, in adjudicating this claim, the Board has considered the assertions of the Veteran and her representative; however, such evidence provides no basis for allowance of the claim. As indicated above, this claim turns on the fundamental medical matter of current disability-here, one requiring a medical diagnosis-a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and her representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110; see also 38 C.F.R. § 3.303. Thus, where, as here, competent evidence does not establish the existence of the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353; Brammer, 3 Vet. App. at 225. In the instant case, the claim for service connection for a headache disorder must be denied, because the first essential criterion for a grant of service connection-evidence of a current disability upon which to predicate a grant of service connection-has not been met. For all the foregoing reasons, the Board finds that the claim for service connection headache disorder claimed as tension headaches must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Partial Tongue Numbness Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The rating for the Veteran's partial tongue numbness has been assigned under Diagnostic Code 8212, for paralysis of the twelfth (hypoglossal) cranial nerve. That diagnostic code provides that incomplete, moderate paralysis of the hypoglossal nerve warrants a 10 percent rated. A 30 percent rating is assigned for severe incomplete paralysis, and a 50 percent rating is assigned for complete paralysis. See 4.124a, Diagnostic Code 8212. The terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the rating criteria does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. By way of history, the Veteran filed an original claim for service connection for partial tongue numbness in September 2007. Service treatment records note numbness of the tongue following dental surgery. The Veteran was afforded a VA examination in November 2007 which noted a diagnosis of partial numbness of the right tongue, but did not provide an assessment of the severity of the disability, or render findings consistent with the criteria for rating the disability pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8212. By rating decision dated in April 2008, the RO granted service connection for partial tongue numbness, status-post extraction of wisdom teeth and assigned a noncompensable disability rating effective March 1, 2008, the day after the Veteran's discharge from military service. Thereafter, the Veteran timely perfected an appeal. In January 2012, the Board remanded the partial tongue numbness issue for a new VA examination, with medical opinion, essentially to determine the functional effects of the Veteran's partial tongue numbness. Pursuant to the Board remand, the Veteran was scheduled for a VA examination in July 2012; however, she failed to report to the scheduled examination. Both the January 2012 Board remand and the May 2012 letter from the RO to the Veteran notified her that she would be scheduled for an examination in connection with her claim and further informed her of the consequences of failing to report to the examination. When entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(a). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall rated based on the evidence of record. 38 C.F.R. § 3.655(b). Notably, as the claim under consideration is one for a higher initial disability rating assigned following the award of service connection, it is a an original compensation claim. In this case, no medical records indicate the level of severity of the Veteran's partial numbness of her tongue. Service treatment records merely show numbness of the tongue following dental surgery. On VA examination in November 2007, the examiner diagnosed partial numbness of the right tongue, but she did not provide an assessment of the severity of the disability, or render findings consistent with the criteria of Diagnostic Code 8212. Residuals of thick speech were indicated, even though the examiner noted normal speech on clinical examination and normal examination of the mouth. She noted that a dental examination may be required to further evaluate the disability..As noted, the Veteran failed to report for a subsequently scheduled VA examination. On this record, the Board can only surmise that the service-connected partial tongue numbness may be manifested by reported numbness and possible residuals of thick speech. However, there is competent evidence to support a finding that disability is, or has been, manifested by, at least, moderate incomplete paralysis-which is required under the minimum, compensable rating under Diagnostic Code 8212, the diagnostic code that specifically provides the rating criteria for the twelfth (hypoglossal) cranial nerve, the nerve leading to the muscles of the tongue, There also is no medical evidence indicating that the disability involves any factor(s) warranting evaluation under any other provision(s) of VA's rating schedule. Again, while a VA examination scheduled in connection with the Board's remand may have yielded pertinent findings upon which to evaluate the disability under consideration, the Veteran failed, without explanation, to report to that examination. Hence, the Board has no alternative but to evaluate the claim on the basis of the evidence of record. As indicated, such evidence simply is not supportive of the claim higher rating. The Board emphasizes that, under 38 C.F.R. § 3.326(a), individuals for whom an examination has been scheduled are required to report for the examination. The "duty to assist is not always a one-way street" and a veteran is obligated to cooperate in the development of his or her pending claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As for the Veteran's assertions, the Board, again, acknowledges that the Veteran is competent, as a layperson, to report that about which she has personal knowledge-to include her own symptoms. See, e.g., Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 93.). As indicated, the Board has certainly considered her assertions in this regard. However, the Veteran's subjective complaints of partial numbness and possible residuals of thick speech simply do not, without more, provide a basis for award of a compensable rating, The above determinations are based upon consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any point since the effective date of the award of service connection, the Veteran's partial tongue numbness has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (cited and discussed in the September 2009 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. at 116. In this case, the Board finds that schedular criteria are adequate to rate the Veteran's partial tongue numbness. The rating schedule fully contemplates the described symptomatology for the disability, and provide for ratings higher than those assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's partial tongue numbness, pursuant to Fenderson, at any point, and that the claim for a higher initial disability rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as no competent, probative evidence supports the claim for a higher initial rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 3.102; Gilbert 1 Vet. App. at 53-56. ORDER Service connection for a headache disorder, claimed as tension headaches, is denied. An initial, compensable disability rating for partial tongue numbness, status-post extraction of wisdom teeth, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs