Citation Nr: 1330867 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-17 631 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of an oral cystectomy. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to December 1979. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO denied the Veteran's claim for a rating in excess of 10 percent for residuals of an oral cystectomy. In October 2008, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in April 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2010. In August 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In January 2013, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further development of the evidence. After accomplishing further action, the AMC continued to deny the claim on appeal (as reflected in an April 2013 supplemental statement of the case (SSOC)) and returned the matter to the Board for further appellate consideration. The electronic, paperless (Virtual VA) claims processing system contains additional VA outpatient treatment records that are cumulative of records already considered by the RO in the April 2013 SSOC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The residuals of an oral cystectomy consist of numbness and loss of sensation of the lower left gum, lip, and external surface skin below the lip on the left side with no impairment of mastication or speech and no loss of facial muscle tone or disfigurement. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of an oral cystectomy are not met. 38 U.S.C.A. §§ 1155, 1712 (West 2002); 38 C.F.R. §§ 3.321, 3.381, 4.1, 4.3, 4.7, 4.40, 4.45, 4.118, Diagnostic Code 7819, 4.124a, Diagnostic Codes 8205, 8212, 4.150, Diagnostic Code 9905, 17.161 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations 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, as well as the evidence that VA will attempt to obtain and which evidence he 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). 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 (here, the RO, to include the AMC). 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. A February 2008 pre-rating letter provided notice to the Veteran with the criteria to substantiate a claim for an increased rating including a general description of the method for assignment of a rating and effective date. The notice also explained the Veteran's and VA respective responsibilities to obtain relevant evidence. Post rating, in May 2009, the RO again provided general notice of how VA determines disability ratings (as well as the type of evidence that impacts that determination), as well as provided notice of the specific criteria utilized for evaluating the disability on appeal. After the Veteran was afforded an opportunity to respond, the April 2010 SOC reflects readjudication of the claim. Hence, the Veteran is not prejudiced by the timing of the later notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In August 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, during the August 2012 hearing, the undersigned noted the issues on appeal. Information was solicited regarding the Veteran's residuals of an oral cystectomy as well as the functional impact such disability has on his daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Although the submission of specific evidence was not suggested, the hearing discussion revealed the need for further development as directed in a January 2013 remand. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the hearing is legally sufficient. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of March 2008, January 2010, February 2010, and April 2013 VA examinations. The Board concludes that the examinations are adequate because they included a review of the history, a physical examination, a review of relevant clinical testing, and appropriate diagnoses with findings applicable to the rating criteria. The additional development directed by the Board in a January 2013 remand was accomplished, with the exception of three months of VA outpatient treatment records not held at the identified VA facility; the Veteran was so notified in a February 2013 letter. Also of record and considered in connection with the appeal is the transcript of the August 2012 Board hearing (discussed above) as well as various written statements provided by the Veteran, and by his representative, on his behalf. The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim decided herein, the avenues through which he might obtain relevant evidence, and the Veteran's and VA's respective responsibilities obtaining relevant 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 this 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 any of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 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 The Veteran served as a U.S. Army combat engineer with peacetime duty in Germany. In statements dated in June 2008, September 2008, October 2008, and December 2008, and during an August 2012 hearing, he contended that the residuals of an oral cystectomy in service are more severe than are contemplated by the current rating and include recurrent cysts or abscesses; a temporomandibular joint disorder (TMJD); numbness of the gum, lower lip, and jaw; and deformity of the left side of the face. The Veteran further contended that the disability should be classified as a compensable dental disorder. 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. The 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The RO initially assigned a noncompensable rating for the residuals of an oral cystectomy in 1982 as an unlisted but analogous skin disorder under the criteria of 38 C.F.R. § 4.27, 4.118, Diagnostic Code 7899 (1982). Under regulations in effect during the period covered by this appeal, benign neoplasms of the skin are rated for disfigurement of the head or face, scars, or impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819. Based in part on the Veteran's symptoms and the clinical observations of a VA examiner in July 1998, the RO assigned a 10 percent rating for the residuals of an oral cystectomy under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8212 (1998) for moderate incomplete paralysis of the twelfth cranial nerve. The Veteran filed the current claim for increase in November 2007. In the July 2008 rating decision, the RO continued the same rating but under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8205 for moderate incomplete paralysis of the fifth cranial nerve. Neurological disabilities are ordinarily to be rated in proportion to the loss of motor, sensory, or mental function. 38 C.F.R. § 4.120. Under Diagnostic Codes 8212 and 8205, a ten percent rating is warranted for moderate incomplete paralysis of the fifth or twelfth cranial nerves. A 30 percent rating is warranted for severe incomplete paralysis, and a 50 percent rating for complete paralysis. The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4124a. As noted, in applying the schedular criteria for rating nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Compensation for a dental disability may be granted for a condition that resulted from combat or other in-service trauma. 38 U.S.C.A. § 1712; 38 C.F.R. § 3.381 Dental or alveolar abscesses will be considered solely for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. § 3.381 (a), 17.161. A ratable disability is available if there is loss of substance of the maxilla or mandible without loss of continuity where the lost masticatory surface cannot be restored by suitable prosthesis. 38 C.F.R. § 4.150, Diagnostic Codes 9913-16. For temporomandibular joint disorders, a 10 percent rating is warranted when the range of lateral excursion about the temporomandibular articulation is within 0 to 4 millimeters (mm) or when the range of inter-incisal motion about the temporomandibular articulation is from 31 to 40 mm. A 20 percent rating is warranted for an inter-incisal range of 21 to 30 mm. Higher ratings are available for greater limitation. Ratings for limited inter-incisal movement, however, may not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Considering the pertinent evidence in light of the above, the Board finds that a rating greater than 10 percent for the Veteran's residuals of an oral cystectomy is not warranted at any time pertinent to the current claim for increased rating. Service treatment records show that the Veteran underwent oral surgery in October 1977 and again in October 1978 to remove a kerato cyst from the buccal plate area of tooth number 19. There was no evidence of combat or other trauma. In December 1978, the attending oral surgeon noted some numbness in the area and in the lip with questionable nerve regeneration. In a follow-up examination in October 1979, a military dentist noted that the osseous defect at tooth 19 was completely filled in and the symptoms were stable, but the Veteran never regained sensation in the lower left quadrant. In support of an April 1982 claim for service connection for residuals of the oral cystectomy at tooth 19, the Veteran submitted a record of private dental care that shows the surgical removal of a papilloma in the area of teeth 29 and 30. In September 1982, the RO granted service connection for residuals of an oral cyst and assigned a noncompensable rating under Diagnostic Code 7899 for a skin disorder without further explanation. In July 2010, a VA examiner noted the Veteran's reports of continued numbness in the area of tooth 19 with difficulty moving his jaw in the morning and pain at the back of his mouth. On examination, there was a severely receding gum line at tooth 19 and sensitivity to light touch but no disfigurement, loss of tongue function, or inability to fully close the mouth. In November 1998, the RO granted an increased rating of 10 percent under Diagnostic Code 8212 for incomplete moderate paralysis of the 12th cranial nerve. In March 2008, a VA neurologist noted the Veteran's reports of gum numbness that was not bothering him but that he experienced pain on both sides of the temporomandibular joint, especially while trying to eat in the mornings. The pain ceased after a few seconds and did not recur later in the day. The Veteran also experienced numbness in an area the size of a quarter on the left lower lip that did not interfere with speech or chewing. On examination, there was normal motion of the lower jaw and a well healed indentation under the left lower canine tooth. There was numbness on the outer aspect of the skin at the angle of the mouth of about two centimeters in diameter. Speech was normal with no weakness of lower jaw muscles. The neurologist reviewed VA electronic medical records and concluded that the neurologic deficit was stable and unchanged. In a June 2008 statement, the Veteran contended that the residuals of the cystectomy in service should be considered a dental disorder for rating and treatment purposes. In July 2008, the RO denied a rating in excess of 10 percent for residuals of the cystectomy. Although the electronic record continues to refer to Diagnostic Code 8212, a handwritten change in the claims file copy refers to Diagnostic Code to 8205 for incomplete moderate paralysis of the 5th cranial nerve. The rating criteria are the same under both diagnostic codes. In written statements in September and October 2008, the Veteran noted that consideration should be afforded to disfigurement of his face, that he continued to have abscesses in the area, and that he required dental care to keep his gums and teeth healthy. In May 2009, a VA primary care physician noted continued gum and lip numbness and additionally noted a loss of left side facial muscle mass. In January 2010, the VA neurologist examined the Veteran and noted stable and unchanged gum and lip numbness and no loss of tongue function or positioning. The neurologist noted that function of the 12th cranial nerve was normal but that there was some reduced facial sensation of the left mandible associated with the 5th (trigeminal) cranial nerve. The neurologist also noted a new small cyst in the gum below the level of the tooth and referred the Veteran for a dental examination. In February 2010, three VA dentists noted review of the electronic medical records and accurately summarized the history including the Veteran's report of no recurrence of the cyst after service. On examination, the dentists noted no limitation of masticatory function and no boney loss of maxilla or mandible. There was continued parathesia and hypothesia of the lower left lingual and baccal gingival tissue distal to tooth 19. The dentists also noted a small clear lesion between teeth 21 and 22 and recommended a biopsy. X-rays again showed the tooth 19 site was completely filled in. The dentists also noted generally poor oral hygiene, plaque, debris, and calculus in the area of tooth 19, and multiple carious teeth but no limitation of movement of the tongue. The dentists confirmed the paresthesia associated with the third branch of the trigeminal nerve. In an April 2010 statement of the case, the RO continued the 10 percent rating under Diagnostic Code 8205 for incomplete, moderate paralysis associated with the 5th (trigeminal) cranial nerve. The RO did not address the Veteran's claim for dental care for the treatment of the service-connected residuals of the cystectomy. During the August 2012 Board hearing, the Veteran testified that he experienced recurrent abscesses in the affected area about once per year but did not seek treatment because of the expense. He stated that he experienced morning locking of his jaw that interfered with eating breakfast and a deformity of one side of his face. He further stated that the area of numbness had grown larger and that he had recently undergone VA oral surgery to remove another cyst in the same area. He stated that his VA dentist told him that the new cyst was related to the service-connected disability. In August 2012, the Veteran underwent oral surgery to remove a cyst between teeth 21 and 22 at a VA facility. A pathology report showed fragments of bone and oral mucosa with a benign simple cyst. The pathologist noted, "chronic bone loss exposing proximal root surface #21 and 22." In January 2013, the Board remanded the claim to obtain an additional examination, in part, for evaluation of the asserted facial deformity and recurrent oral cysts and bone loss in the area of the cyst that was excised in service. The Board also directed the RO to request additional VA outpatient treatment records and to afford the Veteran an opportunity to submit or identify additional relevant private treatment records. As noted above, the Appeals Management Center (AMC) obtained all available VA records and advised the Veteran regarding the records that were not available. In correspondence in February 2013, the RO invited the submission of additional evidence. In March 2013, the Veteran responded that he did not have records of private medical care. In April 2013, the Veteran was examined by a VA dentist who noted a review of the entire claims file and provided a detailed summary of the symptoms and treatment for the oral cysts during and after active duty. The dentist noted that the Veteran has been diagnosed with recurrent benign oral neoplasms or simple cysts and with temporomandibular joint disorder (TMJD). On examination, the dentist noted paresthesia to pin prick on buccal gingival from tooth 19 to 23 and of the lower vermillion from the midline of the lip extending to the left corner of the mouth and the external surface skin below the lip on the left side. The parathesias was stable and unchanged and only affected the sensory portion. There was no difference in muscle tone on the right and left side. The tongue, lips, and cheek all were in normal function with no functional deficit from the loss of sensation of the affected areas. The tooth 19 site had a slight concavity of the buccal plate but no difference in mandibular ridge thickness of the right and left. The dentist noted that the Veteran's external facial form did not show any notable asymmetry with no facial disfigurement. Regarding TMJD, the dentist noted the Veteran's report that for the past eight years his jaw "locks up" in the morning for a few seconds but does not bother him for the remainder of the day. The dentist noted that these symptoms were not noted in service. On examination, lateral excursion was greater than 4 mm with no objective evidence of painful motion. Inter-incisal distance was greater than 40 mm with painful motion greater than 40 mm. There was no additional loss of function on repetition. The dentist noted that imaging studies of the joint were negative. The dentist did not comment whether the TMJD was a residual of or secondary to the service-connected oral cystectomy. At the outset, Board observes that the Veteran is certainly competent to report his own observable or sensed symptoms of the left gum, jaw, and face (see, e.g. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)) and the Board finds no reason to question the veracity of his assertions in this regard. His reports are consistent and the reports of loss of sensation of the gum, lip, and face have been noted on clinical examinations. Such assertions are thus, accepted as credible. Nonetheless, however well meaning, he simply does not have the training or experience to identify the residuals of his surgery, or to assert how his disability should be evaluated. See, e.g., Bostain v. West , 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Here, with respect to the type and extent of actual functional impairment caused by the disability under consideration, the Board places greater probative weight on the observations and ultimate findings of the VA medical professionals, to include dentists in 2010 and 2013 who found no impairment of speech, mastication, tongue function, or facial asymmetry or disfigurement. The Board determines that the residuals of an oral cystectomy, manifesting as numbness and loss of sensation of the left lower gum, lip line, and external surface skin below the lip on the left side, are best contemplated by a rating for neurological deficit under Diagnostic Code 8205 for moderate incomplete paralysis of the fifth cranial nerve. A rating in excess of 10 percent is not warranted because the disability is wholly sensory without a loss of function, scars, or disfigurement. A rating under Diagnostic Code 7819 for a skin disorder is less appropriate because there is no impairment of function, scar, or disfigurement and therefore would be less advantageous to the Veteran. Although a primary care physician noted some loss of facial muscle mass in 2009, the Board places greater weight on the more detailed observations of the VA dentist in 2013 who noted no loss of function, asymmetry, disfigurement, or loss of muscle tone. The Board also finds that a higher rating for the disability under consideration is not assignable under any other, potentially applicable provision of VA's rating schedule. Notwithstanding the Veteran's assertions, the Board finds that evaluation of the disability under the diagnostic codes for rating dental disabilities is not warranted. The Veteran did not experience a combat or other direct trauma to the oral cavity. Cysts or abscesses are not subject to disability compensation but are considered solely for the purpose of establishing eligibility for outpatient dental treatment. Contrary to the Veteran's statement at his hearing, he received VA care for the removal of recurrent oral cysts as recently as August 2012. To the extent that the procedure to remove the cyst in service caused trauma in the form of neurological damage, disability compensation under Diagnostic Code 8205 is warranted. However, the residuals do not include impairment of masticatory function or speech. Although there was one notation by a pathologist in 2012 of bone loss in the area of the most recent cyst, clinical dentist observations near the end of active duty in 1979 and again by VA dentists in February 2010 and April 2013 showed that the affected area had filled in with no difference in mandibular ridge thickness of the right and left. Additionally, even if TMJD is deemed a residual of the Veteran's surgery, a compensable rating would not be warranted because the lateral excursion is greater than 4 mm and the inter-incisal range of motion is greater than 40mm. Aside from the Veteran's lay contention, there is no credible evidence that TMJD is a residual of or secondary to the service-connected cystectomy. Nevertheless, it does not warrant a ratable dental disorder for the purposes of compensation and access to routine general VA dental care. Furthermore, the Board finds that the disability under consideration has not been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis at any point pertinent to this appeal. See 38 C.F.R. § 3.321(b)(1) (cited in the April 2010) 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 disabilities 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, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Specifically, the Board notes that the rating criteria for skin and neurological disorders adequately contemplate the symptoms of loss of sensation without impairment of function or appearance. There is no evidence of nutritional or speech dysfunction to interfere with daily personal or occupational activity. The Veteran has not received VA treatment for recurrent cysts or abscesses. Significantly, there is no clinical indication or argument that the applicable criteria are otherwise inadequate to rate the disability under consideration. 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). Finally, the Board acknowledges that, if the claimant or the record reasonably raises a question as to whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, the Veteran has not alleged, and the record does not indicate, that his residuals of an oral cystectomy render him unemployable. Hence, on these facts, consideration of a TDIU in connection with the higher rating claim on appeal is not warranted. For all the foregoing reasons, the Board concludes that there is no basis for staged rating of the disability under consideration, pursuant to Hart, and that the claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the assignment of any higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 10 percent for residuals of an oral cystectomy is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs