Citation Nr: 1310055 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-15 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased disability rating for postoperative residuals of left parotid mixed neoplasm, to include Frey's Syndrome, rated as 10 percent disabling, prior to July 13, 2012 and rated as 30 percent disabling, starting July 13, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from August 1948 to November 1969. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Boston, Massachusetts, that continued a 10 percent rating. The Veteran appeared at a Travel Board hearing in April 2012 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file and has been reviewed. Following a review of the Veteran's claim, the Board remanded the claim to the RO via the Appeals Management Center (AMC), in Washington, DC. This occurred in June 2012. The claim has since been returned to the Board. In December 2012, the RO increased the Veteran disability rating to 30 percent effective July 13, 2012. As the Veteran has not expressed satisfaction with this determination, and it is not a full grant of the benefit sought, his appeal proceeds from the determination. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Upon reviewing the development since June 2012, the Board finds there has been substantial compliance with its remand instructions with respect to the appellant's claim. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has noted that 'only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance.' D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination 'more than substantially complied with the Board's remand order'). The AMC was tasked by the Board to obtain an additional VA examination. This occurred in July 2012. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim based on the evidence that is of record. FINDINGS OF FACT 1. Prior to July 13, 2012, postoperative residuals of left parotid mixed neoplasm, to include Frey's Syndrome, manifested by mild left facial numbness and profuse perspiration when eating, but without pain. 2. Starting July 13, 2012, postoperative residuals of left parotid mixed neoplasm, to include Frey's Syndrome, manifested by severe left facial numbness and profuse perspiration when eating, but without pain. CONCLUSIONS OF LAW 1. Prior to July 13, 2012, the criteria for a disability rating in excess of 10 percent for postoperative residuals of left parotid mixed neoplasm, to include Frey's Syndrome, have not been met. 38 U.S.C.A. § 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.59, 4.71a, 4.118, DC 8205 (2012). 2. Starting July 13, 2012, the criteria for a disability rating in excess of 30 percent for postoperative residuals of left parotid mixed neoplasm, to include Frey's Syndrome, have not been met. 38 U.S.C.A. § 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.59, 4.71a, 4.118, DC 8205 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. With respect to the increased rating claim on appeal, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a November 2008 letter, sent prior to initial unfavorable AOJ decision issued in April 2009, advised the Veteran of the evidence and information necessary to substantiate an increased rating claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The letter also that informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, as well as all post-service private treatment records identified by the Veteran and the record have been obtained and considered. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. In addition to the foregoing, the Veteran was also provided with a February 2009 fee-based examination and a July 2012 VA examination in conjunction with the claim on appeal. There is no allegation or indication that the examinations rendered in this appeal were inadequate. Therefore, the Board will proceed with review of the Veteran's claim based upon all relevant evidence. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); 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). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Laws and Regulations Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012); 38 U.S.C.A. § 1155 (West 2002). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 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 (2012). The Veteran's postoperative residuals of left parotid mixed neoplasm, to include Frey's Syndrome has been rated as 10 percent disabling and increased to 30 percent disabling starting July 13, 2012 under Diagnostic Code 8305, for neuritis of the fifth cranial nerve, which affects sensation in the face and certain motor functions such as biting, chewing, and swallowing. Neuritis is rated by analogy under Diagnostic Code 8205 for paralysis of the fifth cranial nerve. Under that regulation, incomplete, moderate paralysis warrants 10 percent disability rating. Incomplete severe paralysis warrants a 30 percent disability rating. Complete paralysis warrants a 50 percent disability rating. 38 C.F.R. § 4.124a In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2012). Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2012). When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2012). Factual Background and Analysis The Veteran was granted service connection for postoperative residuals of left parotid mixed neoplasm in a February 2007 RO decision based upon a QTC examination dated in January 2007. In an October 2008 letter, Dr. Latty stated that as the Veteran ages, his symptomatology has increased as well as his developing an additional complication diagnosed as Frey's Syndrome. The physician stated that the continued and ongoing significant increase of uncontrollable perspiration to the left side of the Veteran's face and rear of his head is persistent, uncomfortable, irritating, and poses embarrassment. In a December 2008 letter, the Veteran asserted his condition has worsened and has become increasingly irritating and uncomfortable as he eats. He complained that he perspires profusely on the left side of his face and back of his head down his neck. He reported it only happens when he eats, and poses an embarrassment. He stated that due to the numbness on the left side of his face, he will not notice his perspiration. During a February 2009 VA examination, the Veteran complained of left facial numbness, but without pain. The examiner noted that mixed neoplasms of the left parotid gland is resolved. The condition does not affect body weight, he has no polyuria and polydipsia, and he has not experienced any headaches or changes in vision as a result of his endocrine condition. The Veteran complained of increased perspiration on the left side of his face associated with eating. He is not receiving any treatment, and he does not experience any functional impairment. Upon physical examination, cranial nerves revealed abnormal findings of left facial numbness without muscle weakness or wasting. The diagnoses were left facial numbness, Frey's syndrome, and status post mixed neoplasms of left parotid gland. In a multiple statements from the Veteran and a July 2009 statement from the Veteran's friend, they both testified to the profuse perspiration when the Veteran eats in social situations which is uncomfortable and embarrassing. During an April 2021 Board hearing, the Veteran testified that he sweats when he eats. A July 2012 VA examination indicates the Veteran reported he perspires on the left side of his face when he eats. He complained that sometimes he needs to wrap a towel around his neck during meals due to profuse sweating. The examiner noted cranial nerve V (trigeminal) was affected by his condition. Objectively, the Veteran was noted to have mid-face numbness of a moderate degree of severity. The examiner also noted he has increased perspiration with eating. Muscle strength testing was normal and he had decreased sensation mid-face on the left side. The examiner assessed he has severe incomplete paralysis of the cranial nerve V (trigeminal). The examiner indicated he has findings are consistent with Frey's Syndrome, or gustatory sweating and this is a recognized complication of aberrant sympathetic nerve regeneration following parotid gland surgery. The examiner added that the Veteran suffers from both partial numbness and gustatory sweating, which the examiner opined at least as likely as not constitutes a severe disorder, albeit partial. In light of the above, the Board finds that a disability rating in excess of 10 percent is not warranted for the left parotid mixed neoplasm, to include Frey's Syndrome, prior to the July13, 2012. Prior to the July 2012 VA examination, no severe neurological deficits were documented, save loss of sensation over the Veteran's left side of his face and perspiration. There have been no objective findings of muscle weakness or wasting, and the February 2009 VA examination specifically noted no functional impairment due to the disorder. Impairment that is wholly sensory in nature is to be rated at most equal to moderate incomplete paralysis. 38 C.F.R. § 4.124a, Note. Moderate incomplete paralysis of the fifth cranial nerve is assigned a 10 percent rating under Diagnostic Code 8205. Therefore, a disability rating in excess of 10 percent, is not warranted for service-connected left parotid mixed neoplasm, to include Frey's Syndrome, prior to July 13, 2012. For the time period starting July 13, 2012, the Board finds that a disability rating in excess of 30 percent is not warranted for the left parotid mixed neoplasm, to include Frey's Syndrome. The July 2012 VA examination reported a loss of sensation over the Veteran's left side of his face and perspiration which is severe. Severe incomplete paralysis of the fifth cranial nerve is assigned a 30 percent rating under Diagnostic Code 8205. At no time have there been objective findings of muscle weakness or wasting or finding of a total paralysis of the fifth cranial nerve warranting a higher 50 percent disability rating. Therefore, a disability rating in excess of 30 percent is not warranted for service-connected left parotid mixed neoplasm, to include Frey's Syndrome, from July 13, 2012. The Board has considered whether higher ratings might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates additional staged ratings are not warranted. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4 (2012), whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher rating. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In short, the evidence of record is not in equipoise, and that same evidence is against finding that the Veteran is entitled to increased ratings for postoperative residuals of left parotid mixed neoplasm, to include Frey's Syndrome. An extra-schedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extra-schedular rating include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected disability presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). As reflected by the above discussion, the Veteran's symptoms are well within those contemplated by the rating schedule. Therefore, further consideration of an extra-schedular rating is not warranted in this case. The Board has considered whether the issue of a total disability rating for compensation based on individual unemployability is raised by the record but finds that it is not. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a service member submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the 'identify the benefit sought' requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider total disability based on individual unemployability). (CONTINUED ON NEXT PAGE) In this case, there is no indication that the appellant is unable to obtain or maintain employment solely as a result of his service-connected disorder. ORDER Entitlement to an increased disability rating for postoperative residuals of left parotid mixed neoplasm, to include Frey's Syndrome, rated as 10 percent disabling, prior to July 13, 2012 and rated as 30 percent disabling, starting July 13, 2012, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs