Citation Nr: 1335715 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-06 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 30 percent for focal dystonia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to June 2008. This appeal to the Board of Veterans' Appeals (Board) arises from an October 2008 rating decision of the Houston, Texas Regional Office (RO) of the Department of Veterans' Affairs (VA). In August 2012, a Board hearing was held in San Antonio before the undersigned Acting Veteran's Law Judge; a transcript of the hearing is of record. FINDING OF FACT The Veteran's focal dystonia results in left facial weakness/drooping with drooling after 45 seconds to a minute of trombone playing. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for focal dystonia are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.124a, Diagnostic Code (Code) 8207 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). A May 2008 letter explained the evidence necessary to substantiate the claim and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, service personnel records, the reports of VA examinations, letters from fellow servicemen and a former employer, and the assertions of the Veteran and his representative, including DRO and Board hearing testimony. Regarding the Veteran's hearing before the Board, 38 C.F.R. 3.103(c)(2) requires that a VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the Veteran's October 2008 hearing, all parties agreed as to the issue on appeal (i.e. the issue herein decided). Additionally, the record contains no indication of any evidence that may have been overlooked, as medical assessment of the Veteran's focal dystonia is shown both in the service treatment records and in post-service VA examinations report; the Veteran has presented clear testimony of the physiological effects of this disability, along with how it has ended his career as a trombonist; and the record has also been supplemented with letters reinforcing the career ending nature of this disability. As there is no indication the Veteran has any additional evidence to submit or that there is any additional evidence for VA to obtain regarding the instant claim, the Board finds that the duties under Bryant have been met. Further, to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication there is any further outstanding evidence pertinent to his claim. As the Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim, no further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Factual Background The Veteran's service treatment records show that in January 2004, he began experiencing symptoms of facial numbness and was referred for a neurology consultation at Walter Reed Hospital. During the February 2004 consultation, the Veteran indicated that he first noted symptoms in the summer of 2002. At that time, he had noticed mild facial weakness. In the summer of 2003, he noted that the weakness was more prominent and was affecting his performance as a trombonist in the Marine Corps Band. He reported that he currently experienced increased drooling from the left corner of his mouth while playing and difficulty with the fine motor movements required to produce notes. He noted no difficulty with chewing, swallowing or drinking liquids. There was no known injury preceding the onset of the symptoms. He reported no visual abnormal movements of the face but did have a sense of facial movements. There was no reported change in appearance. There was an abnormal facial sensation after prolonged playing. There was no change in voice and the Veteran denied unilateral muscle weakness, muscle ramping or twitching elsewhere. There was no prior history of similar symptoms. Cranial nerve examination showed that light touch and pinprick sensation was intact in the fifth cranial nerve and the muscles of mastication were intact. Examination of the VII cranial nerve indicated that there was decreased movement of the left lower face with speech but this was symmetric with mimetic expression. There was questionable weakness of the orbicularis oculi lower portion, symmetric obricularis, buccinators and platysma. The rest of the examination was essentially unremarkable. The pertinent diagnostic assessment was subtle left hemiparesis of the face of unknown etiology. The examiner noted that there was weakness on examination with more central features and that this was extremely subtle. Power was normal and symmetric. The historical course of the illness was more suggestive of a slow growing lesion or process that occurred and resolved. Differential diagnoses included small cortical lesion (stroke, mass), acoustic neuroma on the left or lesion of the peripheral branch of cranial nerve VII. At a primary care follow-up visit in February 2008, the Veteran reported that his symptoms had very gradually worsened to the point that he could not play his trombone properly. There were no other neurological symptoms. Cranial nerve examination showed that there was facial asymmetry in that the left upper lip had a very mild droop. The examination was otherwise unremarkable. There was no impairment of the occulomtor, trochlear, trigeminal, abducens, glossopharyngeal, vagus or hypoglossal nerves. There was no right or left sided facial weakness. It was noted that the corner of the Veteran's mouth drooped and he was referred to neurology for further evaluation. At a subsequent March 2008 neurology visit, it was again noted that the corner of the Veteran's mouth drooped as a result of facial weakness. It was noted that this weakness of the left upper lip had affected the Veteran's trombone playing to the point where he was retiring in the summer. It was noted that there was no fatigue quality to his symptoms. The Veteran's service personnel records show that the Veteran's performance as bass trombonist and as a trombone section leader was superior. He was noted to be among the most organized and dedicated leaders in the U.S. Marine Band. In an April 2008 letter, the Director of the U.S. Marine Band indicated that prior to being selected for the band, the Veteran had completed a bachelor's degree in music education at Sam Houston State University and a Master's Degree at Rice University. The director noted that while a member of the U.S. Marine Band, the Veteran consistently performed his duties at a very high level. In 2003, he began experiencing playing difficulties (i.e. a negative effect on his embouchure) associated with the focal dystonia and embarked upon a series of exercises and therapies designed to return his embouchure to its previous condition. Unfortunately, his musical performance continued to deteriorate. The director noted that the Veteran had been diagnosed with focal torsion dystonia, which caused involuntary, abnormal contractions of the muscles in the face, which in turn had an obvious negative effect on brass and woodwind players. The director also noted that at present, the treatment for focal torsion dystonia was purely symptomatic. Oral medications and botulinum toxin therapies could be described but they typically provided little relief. As a result of the condition, the Veteran could no longer perform his musical duties at a level commensurate with further service and due to his unique military occupation specialty, he needed to retire from active duty at the 20 year mark rather remaining in service with the band for an additional 10 years. Further, the director indicated that the condition would prevent the Veteran from employment as a civilian professional musician after retirement. In a separate April 2008 letter, a fellow serviceman and band member indicated that he had served in the U.S. Marine Band with the Veteran since 1993. During that time, he came to realize that the Veteran was one of the finest musicians, as well as the finest bass trombone player, he had had the chance to work with. Since 2002, the Veteran's performing ability had diminished due to his focal dystonia. The fellow serviceman noted that players of brass instruments were very reliant upon a finely toned set of muscles in and around the lips. This set of muscles known as the embouchure was the control mechanism for tonal production on a brass instrument. The quality, pitch and volume of the produced sound were a direct reflection of the embouchure. A slight change in the smallest of these muscles could render a performance completely unsatisfactory. The Veteran's condition had eliminated his complete control over his embouchure. This lack of control had made bass trombone playing nothing more than a memory for him. In a June 2008 letter, the Veteran similarly indicated that focal dystonia had ended his ability to perform at the level required for duty with the U.S. Marine Band. Thus, he was required to retire from active duty. The condition had also ended his ability to earn a living as a freelance musician. At an August 2008 VA neurology examination, the examiner noted the Veteran's history of increasing problems with facial weakness leading to inability to play the trombone at the level necessary for duty with the U.S. Marine Band. The Veteran reported that the only time his face would become weak was when he put his lips in a specific embouchure when playing the trombone. Other than that he did not have any facial weakness or numbness. Physical examination showed normal facial sensation and normal motor strength. Cranial nerves IX through XI were normal. When the Veteran presented his mouthpiece for the trombone and attempted to blow air through it, the left corner of his mouth did not function as well as the right and was slightly weak. The pertinent diagnosis was intermittent left facial weakness around the mouth due to focal dystonia, which only occurred when the Veteran pursed his lips to play the trombone with a mouthpiece. Otherwise, his facial movements and other cranial nerves were intact. In a May 2009 letter, the Veteran informed the administration of St. Mary's Hall school in San Antonio that he was resigning his responsibilities as band director. He indicated that he needed to pursue other interests because his lip injury and ongoing issues with tinnitus had made it difficult for him to demonstrate playing techniques properly. Consequently, he felt that he would be doing a disservice to the students if he continued. In a separate May 2009 letter, the Director of Fine Arts from St. Mary's Hall School indicated that the Veteran had received an exemplary rating for the 2008-2009 school year and was offered a contract for the 2009 to 2010 school year but felt that it was in the best interests of the students and the school not to return as band director. At a May 2009 Decision Review Officer (DRO) hearing, the Veteran testified that in May 2002 while in a recording session, he felt a sharp pain go through his upper lip on the left. This went away rather quickly but over the course of the next few months, forming an embouchure became more and more difficult and his level of playing began to drop off. This deterioration got to the point where he was basically unable to fulfill his duties in the Marine Band and he had to retire after 20 years, 10 years or more before he had planned to retire. The disability had definitely ended his military career and more generally his career as a musician playing trombone. Additionally, the Veteran indicated that he had a general droop in the left upper lip, pretty much exactly where the initial pain occurred in 2002. He also noted that although the August 2008 VA examiner indicated that this general droop/weakness only occurred while playing the trombone, the earlier February 2008 assessment clearly showed that the corner of the Veteran's mouth generally drooped. Additionally, the Veteran reported that every once in a while, he would notice when speaking, he would feel a drooping on the left side. This would not occur with the same intensity as with playing the trombone (the latter activity resulted in pronounced weakness with drooling after 45 seconds to a minute) but was still noticeable. When this happened, he felt that he did not have complete control when trying to form words sometimes. In a May 2009 statement, the Veteran indicated that he felt that his drooping of the mouth on the left secondary to his focal dystonia should be assigned a separate rating analogous to a facially disfiguring scar. At a July 2009 VA examination, the Veteran's history of focal dystonia was again noted. Physical examination showed that mental status and speech were intact. The cranial nerves were normal although there was a slight flattening of the left nasolabial fold. When the Veteran demonstrated how he would blow into the mouthpiece, it vibrated and he had some difficulty with the left side of his lower face. Motor examination was normal throughout and sensory, cerebellar functioning and gait were normal. The diagnosis was left facial weakness with focal dystonia specifically when he pursed his lips to play the trombone with a mouthpiece. On his February 2010 Form 9, the Veteran indicated that he felt that the analogous rating code that was used to rate his disability did not adequately address his unique situation in having lost his career and his ability for gainful employment in the music profession. Thus, he requested an extraschedular evaluation of his condition. In August 2012, the Veteran submitted additional evidence in the form of articles pertaining to focal dystonia and how it affects musicians. At his August 2012 Board hearing, the Veteran reiterated the history of onset of focal dystonia with progressive deterioration of his ability to play the trombone, leading to necessary retirement from the Marine Band and inability to work as a civilian musician. He also noted his resignation from St. Mary's Hall. He indicated that when he would attempt to play the trombone, he would get a tremor in his lip and an air leak from his mouth. Thus, he could no longer perform at a professional or even amateur level. As a result, he no longer played the trombone at all. Additionally, the Veteran asserted that assigning a rating for nerve impairment did not appear appropriate as the condition was more generally neurological, emanating from the brain, not necessarily from an individual nerve. He also emphasized that he was requesting an extraschedular rating because the disability had ended his ability to perform the one job for which he had been exclusively trained, along with related positions such as teaching. III. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, however, that staged ratings are not warranted here, as the degree of impairment due to the Veteran's focal dystonia has not varied significantly during the appeal period. Where there is a question as to which of two evaluations apply, the higher evaluation 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's focal dystonia has been rated under Diagnostic Codes 8299-8205. Hyphenated diagnostic codes are used when a disability is not listed in the Rating Schedule and must be rated by analogy, with two rating codes required to identify the basis for the evaluation assigned. 38 C.F.R. §§ 4.20, 4.27. This hyphenated diagnostic code rating including the "99" series indicates that the most analogous diagnostic code for the focal dystonia is Code 8205, applicable to paralysis of the fifth (trigeminal) nerve. The Board notes, however, that as shown by the neurological assessments done during service, the focal dystonia has been shown to involve impairment of the seventh (facial) nerve and is thus more appropriately rated under freestanding Diagnostic Code 8207. 38 C.F.R. § 4.124a. Under Code 8207, impairment of the seventh (facial) cranial nerve is assigned a 10 percent rating for incomplete moderate paralysis, a 20 percent rating for incomplete severe paralysis and a 30 percent rating for complete paralysis. The note following the code indicates that the rating assigned is based on the relative loss of innervation (i.e. stimulating a body part to action) of the facial muscles. Id. Under Diagnostic Code 8205, impairment of the fifth (trigeminal) cranial nerve is assigned a 10 percent rating for moderate incomplete paralysis, a 30 percent rating for severe incomplete paralysis and a 50 percent rating for complete paralysis. The note following the code indicates that the rating assigned is dependent upon the relative degree of sensory manifestation or motor loss. Id. Considering Code 8207, the Veteran has already been assigned a 30 percent rating for focal dystonia and a rating higher than this is not available under this Code. Also, the Veteran's focal dystonia is not actually shown to involve complete paralysis of the facial nerve, as it clear that the Veteran retains substantial use of his facial muscles (i.e. there is still substantial innervation of the facial muscles). Thus, there is no basis for assigning a higher rating under Code 8207. 38 C.F.R. § 4.124a. Also, there is no basis for assigning a higher rating under Code 8205. In this regard, the January 2004 neurology consultation specifically showed impairment of the seventh cranial nerve but did not note impairment of any other cranial nerves. Similarly, at the February 2008 primary care follow-up, the examiner found there was no impairment of the trigeminal nerve. Further, even assuming arguendo that there is some trigeminal nerve impairment, there is no indication that the nerve is completely paralyzed. Accordingly, there is no basis for assignment of a higher rating under this Code. Id. The Board has also considered the Veteran's assertion that a separate rating is warranted for his facial disability as analogous to scarring of the face with disfigurement. However, the Veteran has reported that primarily, his symptoms are only noticeable when playing the trombone, with also a slight subtle feeling of lack of control on occasion when speaking. Based on this report and the objective examinations of record, it is not shown that there is any noticeable disfigurement quality to his face during the ordinary course of daily life, as would be present with a significant facial scarring. See 38 C.F.R. § 7800, Diagnostic Code 7800, Note 1, defining the 8 characteristics of disfigurement. Instead, the evidence indicates that when not playing the trombone, the Veteran's face has shown a slight left weakness of the lip/ slight flattening of the left nasolabial fold, discernible on close examination. The Board finds that such an abnormality is not significant enough in visual presentation to warrant assignment of a rating as analogous to facial disfigurement. Id. The Board has also considered the Veteran's request for an extraschedular rating. In this regard, the Veteran has argued that rating codes for impairment of the nerve do not characterize the extent of his disability, asserting that it more generally emanates from his brain rather than an individual nerve. Regardless of the ultimate origin of the focal dystonia, however, the impairment stemming from it has clearly been characterized as abnormality of facial nerve function and Diagnostic Code 8207 clearly allows for assignment of a disability rating based on the relative loss of innervation of the facial muscles. Thus, the Board finds that the Veteran's focal dsystonia symptomatology, including left facial weakness/drooping with drooling after 45 seconds to a minute of trombone playing, is fully contemplated by the pertinent diagnostic code (i.e. Code 8507). There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). The Board is sympathetic to the truly unfortunate result of the Veteran's focal dystonia; his lost ability to work as a professional trombonist and diminished ability to teach performance of the trombone and other wind instruments. However, the Board's decision making must be governed by the controlling regulations. Under these regulations, the Board is charged with assigning a disability rating, which generally reflects the average impairment in earning capacity in civil occupations from a particular disability and the ability of the body as a whole to function under the ordinary conditions of daily life, including civil employment. See 38 C.F.R. §§ 4.1, 4.10. In the instant case, while the Veteran's focal dystonia completely prevents him from working as a professional musician, it is not shown to present any significant limitation in civil employment more generally, with only perhaps a slight reduction in speaking ability. Accordingly, because the existing 30 percent rating assigned under the rating schedule adequately reflects this more general limitation stemming from the focal dystonia, the Board has no basis for recommending referral for extraschedular consideration. 38 C.F.R. § 3.321, Thun, 22 Vet. App. 111 (2008). ORDER A rating in excess of 30 percent for focal dystonia, including facial weakness, is denied. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs