Citation Nr: 1335357 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-10 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for Reynaud's syndrome/peripheral neuropathy of the upper extremities. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for cervical spinal stenosis. 5. Entitlement to service connection for migraine headaches. 6. Entitlement to a compensable rating for residuals of fracture, left cheekbone, left malar. 7. Entitlement to an initial compensable rating for facial nerve damage, trigeminal nerve, prior to January 31, 2011, and a rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In his February 27, 2008, claim for increase for his residuals of left malar fracture, the Veteran asserted that he had extreme sensitivity to cold and chronic pain in the left upper lip and gums from the nerve damage done during surgery to correct the fracture. As a result of medical examination of the Veteran's disability, in February 2010, the RO granted service connection for facial nerve damage, trigeminal nerve, effective the February 27, 2008, date of the Veteran's claim for increase, and assigned a noncompensable (0 percent) rating. In a September 2012 decision, the RO increased the rating to 10 percent, effective January 31, 2011. While an appeal of this rating has not been separately perfected to the Board, as the rating is a separately compensable disability rating for the current symptoms of the Veteran's left cheekbone fracture residuals, the Board has jurisdiction over the propriety of this rating, as reflected on the title page. In May 2013, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is included in the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of service connection for tinnitus, sleep apnea, cervical spinal stenosis, and migraine headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran withdrew on the record his substantive appeal concerning the issue of entitlement to service connection for Reynaud's syndrome/peripheral neuropathy of the upper extremities. 2. Beginning February 27, 2008, the Veteran's left cheekbone fracture residuals and facial nerve damage have been manifested by decreased sensation in the left side of the face, upper lip, and gums, with some pain and reported cold sensitivity; such symptomatology has approximated, at most, moderate paralysis of the fifth (trigeminal) cranial nerve. 3. There has been no displacement of the maxilla or left malar bone abnormality or functional impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran concerning the issue of entitlement to service connection for Reynaud's syndrome/peripheral neuropathy of the upper extremities have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The criteria for a compensable rating for residuals of fracture, left cheekbone, left malar, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.20, 4.27, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9916 (2013). 3. The criteria for a rating of 10 percent, but no more, beginning February 27, 2008, for facial nerve damage, trigeminal nerve, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.124a Diagnostic Code 8205 (2013). 4. The criteria for a rating in excess of 10 percent for facial nerve damage, trigeminal nerve, have not been met at any time. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.124a Diagnostic Code 8205 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claims Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, the Veteran withdrew the claim of service connection for Reynaud's syndrome/peripheral neuropathy of the upper extremities on the record during his May 2013 Board hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this claim. Thus, the Board does not have jurisdiction to review it, and it is dismissed. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in June 2009, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. While the June 2009 notice letter was provided subsequent to the initial RO determination in September 2008, after issuance of the letter and opportunity for the Veteran to respond, a March 2013 supplemental statement of the case (SSOC) reflects the most recent readjudication of the Veteran's increased rating claim. Hence, the Veteran is not shown to be prejudiced by the timing of this 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 SSOC, is sufficient to cure a timing defect). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical treatment records have been obtained. Also, the Veteran was provided VA examinations in January 2011 and January 2013. These examinations and their associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who provided the requisite medical findings to rate the Veteran's disabilities in accordance with the appropriate criteria. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the May 2013 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Military Order of the Purple Heart. The VLJ and the representative asked questions regarding the current symptomatology and severity of the Veteran's left cheekbone fracture residuals, including his facial nerve damage. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. III. Increased Ratings Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's residuals of fracture, left cheekbone, left malar, are rated under 9999-9916, and are thus rated by analogy under the criteria for DC 9916 for malunion or nonunion of the maxilla. See 38 C.F.R. §§ 4.20, 4.27. Under DC 9916, severe displacement of the maxilla warrants a 30 percent rating, moderate displacement warrants a 10 percent rating, and slight displacement warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.150, DC 9916. His facial nerve damage, trigeminal nerve, is separately rated under DC 8205. Under DC 8205, paralysis of the fifth (trigeminal) cranial nerve is rated 50 percent for complete paralysis, 30 percent for severe incomplete paralysis, and 10 percent for moderate incomplete paralysis, dependent upon relative degree of sensory manifestation or motor loss. 38 C.F.R. § 4.124a, DC 8205. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As reflected in his February 27, 2008, claim for increase and May 2013 Board hearing, the Veteran asserts that his left malar fracture, and specifically the surgery to correct the fracture, has caused numbness in the left side of his face, upper lip, and gums, and extreme sensitivity to cold. In his March 2010 substantive appeal, he also asserted that he had pain while sleeping if lying on his left side. Also, during his May 2013 Board hearing, the Veteran testified that he had problems shaving due to his face numbness. The report of a December 2009 VA dentistry note reflects that the Veteran presented for evaluation of residual numbness in the left maxillary lip and gingiva, which he attributed to a trauma that he received from a motor vehicle accident in service. It was noted that the accident was noted in the patient medical chart, that he had a fracture of the left malar process, and that the Veteran reported that he had had a Caldwell Luc procedure to repair the fracture and several nerves were severed at that time. He reported numbness to the left maxillary lip and maxillary gingiva, with some numbness of the cheek and lip on the left side of the face, which was extremely sensitive to cold. The examiner stated that the Veteran had some residual numbness in the maxillary left lip and gingiva, but that this did not appear to be hindering his ability to chew or affect his range of motion and was not a cause of his current dental problems. The report of a January 2011 VA examination reflects that the Veteran reported having less light touch and pin prick sensation and increased cold sensitivity over the left cheek. The examining physician stated that the Veteran had trigeminal nerve damage, resulting in less light touch and pin prick sensation, increased cold sensitivity, and numbness and tingling over the left facial area. Regarding his left cheek bone fracture residuals, the Veteran also reported pain and weakness, but it was noted that no joint was affected by the Veteran's bone condition. The Veteran reported increased pain and cold sensitivity in cold weather, and he estimated moderate extent of impairment on daily activities due to the flare-up. On physical examination, there was numbness, tingling, decreased touch, and painful sensation with increased cold sensitivity over the left check, involving the trigeminal nerve. Left facial bones X-ray was normal, with no abnormal findings, evidence of arthritis, or evidence of fracture. The diagnosis was status post fracture, left cheek bone, left malar, with residual facial trigeminal nerve damage and associated tingling and numbness, status post surgical fixation. It was noted that the Veteran had neuritis or neuralgia rather than paralysis, and that the condition had moderate effect on occupation and daily activities. The report of a January 2013 VA examination reflects that, with respect to his trigeminal nerve disorder, the Veteran had mild paresthesias and/or dysthesias, and moderate numbness, of the mid face. Muscle strength of the fifth cranial nerve was normal on the right and left, and light touch sensory examination was normal for the fifth cranial nerve except in the location of the left mid face, in which it was decreased, but not absent. When asked whether the left trigeminal nerve had complete, severe incomplete, or moderate incomplete paralysis, or whether the nerve was not affect by paralysis, the examining physician stated that it was not affected. It was noted that the Veteran had no deformity of the left cheek or face and reported numbness in the left upper lip on the outside only, with inside upper lip sensation intact. He did have sensation in the outside left upper lip that he reported as tingling when stimulated. It was also noted that the maxillary branch of the trigeminal nerve was sensory only and carried no microfibers, so the Veteran had no functional effect from this condition and it did not impact his ability to work. Considering the pertinent evidence in light of the governing legal authority, the Board finds that: an initial rating of 10 percent is warranted for facial nerve damage, trigeminal nerve, beginning the February 27, 2008, date of the Veteran's claim for an increased rating; a rating in excess of 10 percent for facial nerve damage, trigeminal nerve, is not warranted at any time; and a separate compensable rating for residuals of fracture, left cheekbone, left malar, is not warranted. The record reflects that, from the time of the Veteran's February 27, 2008, claim for an increased rating, his residual disability for his in-service left cheekbone fracture, for which he has sought compensation, has been trigeminal nerve damage of the left face. This has resulted in decreased sensation and increased sensitivity to cold in the left side of his face, upper lip, and gums, and some left cheek pain. Such symptomatology was claimed by the Veteran in February 27, 2008, and has consistently been noted on examination in December 2009, January 2011, and January 2013; the condition has not been shown to have changed or worsened since the date of the Veteran's claim. Thus, resolving reasonable doubt in the Veteran's favor, a rating of 10 percent for facial nerve damage, trigeminal nerve, is warranted beginning February 27, 2008. However, a rating in excess of 10 percent for such facial nerve damage has not been warranted at any time pertinent to the Veteran's February 27, 2008, claim. The Veteran's facial trigeminal nerve damage has consistently been shown to be productive of decreased sensation in the left side of the face, upper lip, and gums, but such nerve damage has consistently been shown to more closely approximate moderate than severe incomplete paralysis. His disability has consistently been noted not to affect any function or movement of the face. Also, as noted on January 2013 VA examination, with respect to his trigeminal nerve disorder, the Veteran was noted to have had mild paresthesias and/or dysthesias and moderate numbness; muscle strength was normal, and light touch sense was decreased but not absent. Furthermore, when asked whether the left trigeminal nerve had complete, severe incomplete, or moderate incomplete paralysis, or whether the nerve was not affected by paralysis, the examining physician stated that it was not affected. Thus, a higher rating under DC 8205 has not been shown to be warranted. Furthermore, there is no basis for a separately compensable rating at any time for any other residuals of fracture, left cheekbone, left malar, under DC 9916 or any other code. The Veteran's residual disability of his service-related left cheekbone fracture has consistently been noted to be the facial trigeminal nerve damage for which he is compensated under DC 8205. There has been no displacement of the maxilla shown, or any other extra or different symptomatology due to his left cheekbone fracture that is not contemplated in his rating for facial nerve damage under DC 8205. The Veteran's left malar bone has been consistently noted to have no abnormality or functional impairment, and in January 2011 left facial bones X-ray was normal, with no abnormal findings or evidence of arthritis or fracture. Therefore, a separately compensable rating under DC 9916 or any other code is not warranted. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for higher rating. Although he has some dental issues, the medical evidence indicates those are not a result of the service-connected condition. The Veteran's disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. The Board notes that the Veteran has asserted separate disabilities as secondary to his left cheekbone fracture residuals, including sinusitis and deviated septum. However the claims for such disabilities have been separately adjudicated by the RO and no aspect of such claims are currently before the Board. Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record does not reflect that the average industrial impairment from his left cheekbone fracture or residual facial nerve damage would be in excess of that contemplated by the assigned ratings. As discussed above, the Veteran's left cheekbone fracture residuals and facial nerve damage have been manifested by decreased sensation in the left side of his face, upper lip, and gums, with some pain and reported cold sensitivity, approximating, at most, moderate paralysis of the fifth (trigeminal) cranial nerve; the Board notes that the Veteran has also asserted that this has caused him some difficulty shaving, and that he must use a mirror in order to shave. However, such manifestations are reasonably contemplated by the schedular criteria for a 10 percent rating under DC 8205, which contemplates moderate paralysis of the fifth (trigeminal) cranial nerve. The record does not reflect that any disability on appeal has caused impairment in earning capacity above what would be average for such disability. Also, the record does not reflect that the Veteran's disabilities have been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability. While the Veteran has asserted that his disability has had moderate impairment on daily activities, there is no explanation given of how his facial nerve damage or any other left cheekbone fracture residuals might affect his employment in any way. Also the January 2013 VA examiner specifically stated that the maxillary branch of the trigeminal nerve was sensory only and carried no microfibers, so the Veteran had no functional effect from his condition, and it did not impact his ability to work. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Accordingly, a rating of 10 percent is warranted for facial nerve damage, trigeminal nerve, beginning the February 27, 2008, date of the Veteran's claim for an increased rating, a rating in excess of 10 percent for facial nerve damage, trigeminal nerve, is not warranted, and a separate compensable rating for residuals of fracture, left cheekbone, left malar, is not warranted. Furthermore, there is no basis for staged rating of the Veteran's disabilities pursuant to Fenderson or Hart. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER The appeal of the issue of entitlement to service connection for Reynaud's syndrome/peripheral neuropathy of the upper extremities is dismissed. A compensable rating for residuals of fracture, left cheekbone, left malar, is denied. An initial rating of 10 percent, but no greater, for facial nerve damage, trigeminal nerve, beginning February 27, 2008, is granted, subject to the laws and regulations controlling the award of monetary benefits. A rating in excess of 10 percent for facial nerve damage, trigeminal nerve, is denied. REMAND During the Veteran's May 2013 Board hearing, when asked where he received treatment after service prior to receiving VA treatment, the Veteran indicated that he received treatment at the Air Force Hospital in Altus. The earliest VA treatment records available are dated in June 1994, and no post-service treatment records from the Air Force Hospital in Altus are of record. As these treatment records might be pertinent to the Veteran's service connection claims on appeal, the agency of original jurisdiction must attempt to obtain them. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding medical records related to the Veteran's claimed disabilities from Altus Air Force Base, dated from July 1984 June 1994. All records and/or responses received should be associated with the claims file. 2. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs