Citation Nr: 1313547 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 99-00 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to a disability rating greater than 10 percent for a left zygoma fracture and surgical scar. 2. Entitlement to a disability rating greater than 10 percent for a left zygoma fracture with left trigeminal neuropathy with foreign bodies and scar and neck injury. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from May 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA), Regional Office (RO). Jurisdiction of this matter is currently with the RO located in Waco, Texas. In May 2007, the Veteran testified at a personal hearing over which a Decision Review Officer of the RO presided. A written transcript of this hearing has been added to the claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the May 2007 hearing, the Decision Review Officer clarified the issues on appeal and inquired as to the severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask questions regarding his claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conducting of the hearing. Thus, the Board concludes that the duty under Bryant has been fulfilled. This matter was previously before the Board in February 2010 and March 2012, at which time the issues were remanded for additional development. The Board finds that the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that the issues enumerated above were once characterized as a single issue of entitlement to an increased rating for left zygoma fracture, traumatic, left maxillary sinusitis with headaches, left trigeminal neuropathy with foreign bodies and scar, neck injury. However, in a February 2010 Remand, the Board noted that these injury residuals need to be rated separately based on the nonduplicative component symptoms, including, but not limited to, consideration of the criteria pertaining to the trigeminal nerve (Diagnostic Codes 8205, 8305, and 8405) and maxillary sinusitis (Diagnostic Code 6513), as those conditions, listed explicitly as part of the service-connected disability, and for which there are separate diagnostic codes, cannot be considered duplicative with disfiguring facial scarring. Consequently, the Board has recharacterized the issues above. Pursuant to the Board's February 2010 Remand order, the RO awarded the Veteran, within a December 2011 rating decision, a separate disability rating of 10 percent effective December 31, 2008, and 30 percent effective October 28, 2010, for maxillary sinusitis with headaches. The RO also issued an August 2012 rating decision in which it granted a separate disability rating of 10 percent effective November 4, 1996, for a tender scar of the left face. As the Veteran has not yet filed notice of disagreements regarding either of these separate disability ratings, they will not be addressed by the Board at this time. See 38 U.S.C.A. § 7105(a). The Board notes that pursuant to a February 2008 rating decision, the Veteran has been receiving a total disability based on unemployability (TDIU) rating effective January 1, 2008. Prior to January 1, 2008, a 100 percent rating was in effect for service-connected prostate cancer - since January 23, 2006, prior to the date of the Veteran's current claim (October 2006). As such, entitlement to a TDIU prior to January 1, 2008, will not be considered. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. 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. The Veteran's fractured left zygoma scar is not manifested by a severe scar, producing a marked and unsightly deformity of eyelids, lips, or auricles; or visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or two or three of the characteristics of disfigurement. 2. The Veteran's fractured left zygoma is not manifested by severe, incomplete paralysis of the fifth (trigeminal) cranial nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the service-connected fractured left zygoma scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code 7800 (prior to August 30, 2002) and Diagnostic Code 7800 (effective August 30, 2002). 2. The criteria for a disability rating in excess of 10 percent for the service-connected left zygoma fracture, traumatic, left trigeminal neuropathy with foreign bodies have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Codes 8205, 8305, and 8405 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in March 2004, March 2006, and May 2008 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased rating claims, VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed him of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. He was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. He was also provided notice of the applicable relevant diagnostic code provisions. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 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 (2012). 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 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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 a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the 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." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Left Zygoma Fracture and Surgical Scar Regarding the Veteran's scar, the regulations pertaining to conditions of the skin have been changed during the course of this appeal. Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria but, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See VAOPGCPREC 7- 2003 (Nov. 19, 2003); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114. For a decade, a precedent decision of the Court had required that "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and we so hold will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) expressly overruled the Karnas case in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), holding that a new law or regulation applies, if at all, only to the period beginning with the effective date of that new law or regulation. Effective August 30, 2002, VA revised the rating schedule for evaluating skin disabilities. 38 C.F.R. § 4.118 (2003). Here, because the Veteran's claim was submitted in October 1996, consideration will be given to both criteria. The Board notes that as of October 23, 2008, revised provisions for evaluating scars were again enacted. This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008. Accordingly, these revisions do not apply to the present case. 73 Fed. Reg. 54,708 (Sept. 23, 2008). Prior to August 30, 2002, a disfiguring scar to the head, face, or neck warranted a 10 percent rating if it was moderately disfiguring. The next highest rating of 30 percent was only warranted if severe, producing a marked and unsightly deformity of eyelids, lips, or auricles. 38 C.F.R. § 4.118, Diagnostic Code 7800. Effective August 30, 2002, a 10 percent rating is warranted when the Veteran experiences one of the following characteristics of disfigurement: scar of 5 inches or more (13 or more cm.) in length; scar at least one quarter inch (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The next highest rating of 30 percent is warranted if the Veteran has 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 the Veteran exhibits two or three of the aforementioned characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2007). Regarding the trigeminal neuropathy, pursuant to Diagnostic Codes 8205, 8305, and 8405, a 50 percent rating is warranted for complete paralysis of the fifth (trigeminal) cranial nerve; a 30 percent rating is warranted for severe, incomplete paralysis of the fifth (trigeminal) cranial nerve; and a 10 percent rating is warranted for moderate, incomplete paralysis of the fifth (trigeminal) cranial nerve. The Veteran underwent a VA examination in April 1997. He reported hyperesthesia of the left face area and in the cheek area after a zygoma fracture secondary to shrapnel. The zygoma was wired in place, and he had two scars from the shrapnel injuries and the surgery in the left zygoma area. He also reported increased sensitivity in the left cheek area secondary to nerve injury in that area. He reported that if he touched it, it felt like a feather tickling or irritating it. Upon examination, there was a 4 cm. vertical scar in the zygoma area and a 4 cm. transverse scar in the zygoma area. The scars were well-healed, and they blended in with his skin creases. He had hyperesthesia of his left cheek for a distance of 6 cm. by 6 cm. extending from the zygoma downward. The area had increased sensation to both pinprick and touch. In the left neck area, he had a small oblique scar under his chin. It was well healed and blended in well with his skin crease. Private treatment reports from Neurology Associates, P.A. dated June 2002 to May 2003 reflect a past medical history of trouble swallowing. However, a June 2002 report from Austin Radiological Association reflects that the difficulty swallowing was due to a gastroesophageal junction stricture (and not due to a fractured left zygoma). There were no complaints of neurological symptoms of the left zygoma. The Veteran underwent a VA examination in July 2007. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that since the injury, he experienced intermittent numbness, pin/needles and tickling feeling in the area of his fracture/surgery. He reported that it was not severe or limiting in any way. He stated that most of his problems were related to sinusitis and headaches. Upon examination, the Veteran had a slight depression and deformity of the left zygomatic arch/lateral orbit. It was very mild. There was a faded scar measuring 1 cm. long. It was difficult to see as it was hidden in the folds of wrinkles. The area was tender to touch with some flinching to light pressure. The deformity of the bone could be felt, but no motion. He was diagnosed with fracture of zygoma on left with mild trigeminal neuralgia and chronic daily headaches with chronic sinusitis and frequent exacerbations of acute sinusitis. The Veteran underwent another VA examination in October 2010. The examiner reviewed the claims file in conjunction with the examination. The Veteran stated that his surgical scar bothered him for a few years; but that it did not bother him at all anymore. He reported that sometimes he experienced a little bit of twitching/pain; but he would simply rub it and it would go away. The Veteran also reported that he had shrapnel fragments lodged in his neck. He reported that he didn't even know it until a dental x-ray captured the fragments on film. He stated that he didn't have any problems with his neck; but he wanted the injury to be documented in case problems arise in the future. He was diagnosed with a left zygoma fracture. The examiner opined that neither it nor the Veteran's neck injury had any effects on the Veteran's activities of daily living. The Veteran also underwent a VA neurologic examination. Once again, the Veteran reported that after his in-service injury, the left side of his face was numb and very sensitive. He described that if he touched his face, he would have a twitch. He added that this symptom went away after several years, but then returned a year later. He reported that after 5 years, he had fairly normal sensation on both sides of his face. He denied any pain or sensitivity at the examination. The examiner noted that the Veteran had mild facial twitching and spasm. Upon sensory examination of the trigeminal nerve, there was decreased sensation to pain and light touch on the left chin. Examination of the muscles of facial expressions revealed weakness when the Veteran puffed out his cheeks and frowned. Otherwise, muscles of facial expression were normal. The examiner diagnosed the Veteran with left trigeminal neuropathy with foreign bodies and scar. She noted that the condition is best described as neuralgia. She stated that the disability caused no significant effects on the Veteran's usual occupation; and that it resulted in no effects on the Veteran's usual daily activities. As noted in the introduction, in rating decisions dated December 2011 and August 2012, the RO granted a separate rating of 30 percent for maxillary sinusitis with headaches (pursuant to Diagnostic Code 6513), and a separate rating of 10 percent for a tender scar of the left face (pursuant to Diagnostic Code 7804). The Veteran has not filed notices of disagreements with either of these ratings. Moreover, with regards to a neck disability, the Veteran reported (at his October 2010 VA examination) that the fractured zygoma has not yet resulted in any neck residuals. The remaining residuals of the fractured zygoma include facial scarring (disfigurement) and left trigeminal neuropathy with foreign bodies. The facial scarring (disfigurement) has been rated as 10 percent disabling. In order to warrant a rating in excess of 10 percent, the disability would have to be manifested by a severe scar, producing a marked and unsightly deformity of eyelids, lips, or auricles (Diagnostic Code 7800 prior to August 30, 2002); or 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 the Veteran would have to exhibit two or three of the characteristics of disfigurement (Diagnostic Code 7800 effective August 30, 2002). The Board notes that the April 1997 VA examiner noted two scars (4 cms. each). The scars were described as well healed and the examiner noted that they blended in with the Veteran's skin creases. The July 2007 examiner noted a slight depression and deformity of the left zygomatic arch/lateral orbit. It was noted to be very mild. There was also a faded scar measuring 1 cm. long. The examiner noted that it was difficult to see as it was hidden in folds of wrinkles. In light of the manner in which these scars are described (slight, very mild, hidden, faded, etc.), the Board finds that the Veteran's scars are not severe, nor do they produce a marked or unsightly deformity, visible tissue loss, or gross distortion or asymmetry of one feature or paired set of features. Regarding characteristics of disfigurement, the Board notes that the preponderance of the evidence is against a finding that the Veteran's scars are manifested by two or three such characteristics. There are no scars of five inches or more; there is no scar at least one quarter inch wide at its widest part; there is no surface contour of a scar that is elevated or depressed on palpation; there is no scar adherent to underlying tissue; there is no skin hypo- or hyper-pigmented in an area exceeding six square inches; no abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches; there is no underlying soft tissue missing in an area exceeding six square inches; and there is no skin indurated and inflexible in an area exceeding six square inches. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, there appears to be no identifiable period of time since the effective date of service connection, during which the scar disability warranted a disability rating higher than 10 percent. The Board finds that a preponderance of the evidence is against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an increased disability rating for facial scarring must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Left Zygoma Fracture The Veteran's trigeminal neuropathy has been rated as 10 percent disabling pursuant to Diagnostic Code 8205, 8305, and 8405. In order to warrant a rating in excess of 10 percent, the disability must be manifested by severe, incomplete paralysis of the fifth (trigeminal) cranial nerve. The Board notes that at the Veteran's October 2010 VA examination, the examiner noted decreased sensation to pain and light touch on the left chin; and weakness of the facial muscles when the Veteran puffed out his cheeks and frowned. Otherwise, muscles of facial expression were normal. The examiner stated that the disability caused no significant effects on the Veteran's usual occupation; and that it resulted in no effects on the Veteran's usual daily activities. Consequently, the Board finds that the trigeminal neuropathy can be characterized as no more than moderate incomplete paralysis. There is no evidence of record to suggest that the disability is manifested by severe incomplete paralysis of the fifth (trigeminal) cranial nerve. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, there appears to be no identifiable period of time since the effective date of service connection, during which the trigeminal neuropathy warranted a disability rating higher than 10 percent. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for increased disability rating for trigeminal neuropathy must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Extra-schedular Consideration The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). However, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's symptoms of minimal disfigurement and no more than moderate incomplete paralysis of the trigeminal nerve, squarely match the type and degree of the examples set forth under the criteria for the current 10 percent schedular ratings. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet.App. 111 (2008). The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER A disability rating greater than 10 percent for a left zygoma fracture and surgical scar is denied. A disability rating greater than 10 percent for a left zygoma fracture with left trigeminal neuropathy with foreign bodies and scar is denied. ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs