Citation Nr: 1604754 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 00-00 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased schedular rating for residuals of left salivary gland removal, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating on an extraschedular basis for residuals of a left salivary gland removal. (A separate decision will be provided under separate cover for two other issues.) REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to September 1964. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied a rating in excess of 10 percent for a salivary duct stone. This rating was subsequently increased to 20 percent, and recharacterized as residuals of left salivary gland removal. This case has a complex procedural history, as summarized below. The Veteran's attorney has expressly limited the scope of his representation to the rating for residuals of a left salivary gland removal, to include any related conditions. The Veteran has appointed a different representative for his other issues on appeal; therefore, they must be addressed in a separate Board decision. The Veteran testified before the Board at a videoconference hearing in April 2000. In August 2002, the Board denied a rating in excess of 10 percent. The Veteran appealed to the U.S. Court of Appeals for Veteran's Claims (Court), which vacated and remanded that decision, pursuant to a Motion for Remand, in March 2003. In May 2004 and March 2006, the Board remanded this matter to the RO. In December 2007, the Board again denied a rating in excess of 10 percent for the salivary gland disability. The Veteran appealed to the Court, which vacated and remanded this decision in April 2008, pursuant to a Joint Motion for Remand. In August 2008, the Board remanded the matter to the RO. While in remand status, in December 2008, the RO increased the rating for this disability to 20 percent, effective October 16, 2008. In October 2009, the Board recharacterized the disability on appeal as residuals of left salivary gland removal, and awarded a 20 percent rating for the entire period on appeal. The Veteran again appealed to the Court, which vacated and remanded the Board's decision, to the extent that it denied a rating in excess of 20 percent, in a July 2011 Memorandum Decision. In March 2012, the Board remanded the case for development as directed by the Court. In October 2014, the Board remanded this matter because there was an indication that possibly pertinent documents had not been associated with the file. The case now returns to the Board for further review. The claims file is entirely contained in VA's electronic processing systems, known as Virtual VA and the Veterans Benefits Management System (VBMS). As discussed below, the evidence is sufficient to adjudicate the issue of entitlement to an increased rating on a schedular basis; however, the issue of entitlement to a higher rating on an extraschedular basis will be bifurcated and must be remanded. Further, in the March 2012 remand, the Board referred issues of entitlement to service connection for "issues with his teeth" and a disability characterized by difficulty swallowing, both claimed as secondary to his service-connected residuals of a left salivary gland removal. To date, the agency of original jurisdiction (AOJ) has not adjudicated these issues. They are inextricably intertwined with the question of whether a higher rating is warranted for residuals of left salivary gland removal on an extraschedular basis, because both questions require consideration of claimed symptoms that are not contemplated by the applicable diagnostic code. The issue of entitlement to an increased rating on an extraschedular basis for residuals of left salivary gland removal is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the entire period on appeal, the Veteran has had neurological impairment from his left salivary gland removal that has manifested by intermittent swelling, pain, tenderness, burning, stinging, and cramping sensations in the floor of the mouth or left submaxillary gland area; there is not complete paralysis of the nerve. 2. For the entire appeal period, the Veteran has had intermittent displacement of the mandible, with moderate impairment of mastication due to decrease in saliva from the service-connected disability, and no more than moderate limitation of motion of the jaw, including during flare-ups and after repetitive use. 3. For the entire appeal period, the Veteran's scar due to left submandibular gland or stone removal has been no more than slightly disfiguring; there is only one characteristic of disfigurement; and the scar itself was not painful or unstable. CONCLUSIONS OF LAW 1. For the entire appeal, the criteria for a schedular rating in excess of 20 percent for residuals of left salivary gland removal based on neurological impairment have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.20, 4.27, §§ 4.123, 4.124, 4.124a, Diagnostic Codes 8209 to 8409 (2015). 2. For the entire appeal, the criteria for a separate schedular rating of 10 percent for moderate displacement of the mandible, based on limited motion and impaired masticatory function, due to residuals of left salivary gland removal, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.20, 4.27, 4.40, 4.45, 4.59, § 4.150, Diagnostic Codes 9903 to 9905 (2015). 3. The criteria for a separate schedular rating of 10 percent for disfiguring scar, effective from August 30, 2002, as a residual of left salivary gland removal, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.20, 4.27, 4.114, Diagnostic Code 7200, 4.118, Diagnostic Codes 7800 (2001 & 2008), 7800, 7804, 7805 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA provided the Veteran with full notice of the information and evidence necessary to substantiate all elements of his increased rating claim, including in July 2001 and April 2006 correspondences. VA requested the Veteran to identify any pertinent, outstanding records in several letters, as directed in prior Board remands. The claim was subsequently readjudicated in supplemental statements of the case, thereby curing the timing error of the notices provided after initial adjudication. With respect to the duty to assist, service records and pertinent VA and private records identified by the Veteran, and which he authorized VA to request, were obtained by the RO or provided by the Veteran and his representative. Further, the Veteran was examined on multiple occasions in connection with his increased rating claim. Most recently, in June 2013, VA examiner reviewed the claims file and personally examined the Veteran, and delineated all residuals of the Veteran's salivary gland disability and the severity of such residuals, including whether there was paralysis, disfigurement, nonunion of the mandible, or impairment of function of mastication. This information was requested in order to comply with the Court's July 2011 Memorandum Decision, so as to allow for consideration of a rating under the appropriate diagnostic code or codes, as discussed below. In February 2014, this VA examiner submitted an addendum opinion that focused on interrogatories received from the Veteran's attorney. Together, these reports complied with the March 2012 remand directives. There is no argument or indication that the Veteran's disability has changed in severity, or that another examination or further medical evidence is necessary. In November 2014, the Board remanded this matter because it was clear that there were outstanding records pertaining to other issues on appeal, for which a separate decision is being issued; and it was unclear if there were records pertinent to his increased rating appeal. In a March 2015 SSOC, the AOJ indicated that the contents of a temporary file had been associated with the claims file, which included requests by the Veteran's attorney for a copy of documents regarding the increased rating claim, and stated that no additional medical or lay evidence had been received. The Veteran submitted a response to the SSOC in March 2015, stating that he had no new medical evidence to submit. His attorney also submitted arguments in June 2015, with no suggestion that any pertinent records for these issues have not been associated with the claims file. There is no argument or indication of that any documents pertaining to the increased rating claim addressed were not associated with the claims file, or that any outstanding records are necessary for a fair adjudication. Indeed, the Veteran and his attorney have given numerous detailed descriptions of his symptoms, and there are treatment records and examinations for the purposes of his claim, which also record the subjective and objective nature of his symptoms throughout the appeal period. For the foregoing reasons, the prior remand directives have been substantially complied with, and a further remand would only result in unnecessary delay. There is no additional notice or assistance that would be reasonably likely to aid in substantiating the claim on appeal. VA has satisfied its duties to inform and assist, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision. II. Analysis VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to fully and sympathetically develop a claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations, to maximize the potential benefits assigned. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). If two disability evaluations are potentially applicable, the higher evaluation 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If an injury or disease manifests with two different disabling conditions, then two separate ratings should be awarded; it is improper to assign a single rating with a hyphenated diagnostic code under such circumstances. Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006); 38 C.F.R. § 4.27. Separate ratings may be assigned for distinct disabilities from the same injury if the symptomatology for the conditions is not duplicative or overlapping; however, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of staged ratings was appropriate in claims for an increased rating when the facts reflect distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Potentially applicable diagnostic codes for the Veteran's salivary gland disability are 38 C.F.R. § 4.124a, DCs 8209 to 8409, pertaining to the ninth cranial (glossopharyngeal) nerve; § 4.150, DC 9904, for malunion of the mandible, based on the degree of motion and relative loss of masticatory function; § 4.150, DC 9905, for limited motion of temporomandibular articulation, based on range of lateral excursion or inter-incisal range; § 4.114 DC, 7200, for injuries of the mouth based on disfigurement and impairment in function of mastication; and § 4.118, DCs 7800 to 7805, for disfigurement and scarring. See, e.g., VA's arguments to the Court in 2011; 2011 Memorandum Decision of the Court. As noted in the October 2009 Board decision, the Veteran has consistently complained of burning and stinging in the bottom of his mouth, such that a 20 percent rating has been assigned for his residuals of left salivary gland removal based on neurological impairment under DC 8309 for the entire appeal period. Under 38 C.F.R. § 4.124a, diseases of the peripheral nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. at Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Under DC 8209, a 20 percent rating is assigned for severe incomplete paralysis of the ninth (glossopharyngeal) cranial nerve. To warrant the next higher, maximum rating of 30 percent, there must be complete paralysis of this nerve. This rating is dependent upon relative loss of ordinary sensation in the mucous membrane of the pharynx, fauces, and tonsils. Neuritis and neuralgia of this nerve are also rated using these criteria. 38 C.F.R. § 4.124a, DC 8209 & Note, DCs 8309 & 8409. The Veteran's 20 percent rating for neuritis under DC 8309 contemplates his symptoms of frequent and sometimes excruciating pain in the left submandibular glad area or the left floor of the mouth; as well as sensory disturbances of cramping, stinging, burning, numbness, and swelling. There has been evidence of a recurrent or retained calcified stone at times, such as in X-rays in 1997 and a July 2009 CT scan; although a January 2005 pathology report after excision noted that there was not a stone but, instead, gritty scar tissue. Nevertheless, the Veteran's complaints of tenderness, stinging, etc. related to the stone or its removal, to include internal scar tissue, are contemplated by this assigned rating. He has been assigned the maximum rating for neuritis based on severe incomplete paralysis. Id. The evidence does not show that the Veteran's disability approaches complete paralysis. The June 2013 VA examiner expressly stated that there was no paralysis of the affected nerve, although there was moderate nerve damage, which is contemplated by the assigned 20 percent rating. In a February 2014 report, this examiner again stated that there was nerve damage based on reports of frequent stinging or burning sensation, pain ranging from annoying to a level of 8-9 out of 10 or higher, and some external numbness on the left side of the mandible. As complete paralysis of the nerve is not shown, a higher rating is not warranted. Id. The Veteran's attorney has argued that a separate rating is warranted for moderate nerve damage under DC 8209 or DC 8207. Again, the currently assigned 20 percent rating is pursuant to DC 8309, which is based on DC 8209. Id. DC 8207 contemplates paralysis of the seventh (facial) cranial nerve, and ratings of 10 to 30 percent are available dependent upon the relative loss of innervation of the facial muscles. Id. & Note. These are the same rating percentages allowed under DC 8309 (or 8209) of 20 percent for severe impairment or 30 percent for complete paralysis; and this code contemplates similar or overlapping symptoms that are contemplated by the 20 percent rating under DC 8207 in this case. Thus, a separate rating under this code would be impermissible pyramiding. 38 C.F.R. § 4.14. The Veteran has also argued that he should be compensated for chronic laryngitis with symptoms including recurrent sore throats, raspy voice, a continuous need for clearing his throat, wheezing, and coughing, which he believes are related to problems with intubation during the 1973 gland surgery. Service connection and other compensation for laryngitis has been denied by VA several times previously, based on weighing of medical opinions as to whether these symptoms were due to the surgery and residuals, or were related to other surgeries or medical conditions, such as allergic rhinitis, sinusitis, and gastroesophageal reflux disease. See May 1979 rating decision (denying service connection); November 2005, May 2007 rating decisions (denying compensation pursuant to 38 U.S.C.A. § 1151). To the extent that the Veteran's laryngitis and voice symptoms are due to nerve damage from his 1973 surgery, however, they are contemplated under the currently assigned 20 percent rating under DC 8309. These criteria include disturbances in the tongue, back of the mouth, pharynx, and throat. See 38 C.F.R. § 4.124a, DC 8209; see also Dorland's Illustrated Medical Dictionary 694 & 799 (31st ed. 2007) (defining glossopharyngeal and fauces). Thus, a separate rating would not be allowed for such symptoms, as it would be pyramiding. 38 C.F.R. § 4.14. Similarly, the Veteran's complaints of difficulty swallowing, which involves the back of the mouth, pharynx, and throat, are contemplated by the 20 percent rating under DC 8309 for impairment of these areas. See 38 C.F.R. § 4.124a. The Veteran has also complained of decreased saliva with difficulty chewing and swallowing, displacement of the mandible, and limited jaw movement at times. He also asserts that he has disfigurement due his submandibular gland and surgical scar, with indentation of the jaw, depressed scar, and asymmetry. See, e.g., notice of disagreement and statements in July 1999, November 1999, December 1999, April 2001; April 2000 hearing transcript; March and June 2015 arguments. Under DC 9904, displacement of the mandible will be assigned a 10 percent rating where it is moderate; and a maximum 20 percent rating is warranted for severe displacement. These ratings are dependent upon the degree of motion and relative loss of masticatory function. 38 C.F.R. § 4.150, DC 9904 and Note. Under DC 7200, injuries of the mouth will also be rated based on impairment in the function of mastication, as well as disfigurement. 38 C.F.R. § 4.114, DC 7200. There is no specific regulation to rate masticatory function; instead, all pertinent evidence in this regard must be considered to determine the degree of impairment. See 38 C.F.R. § 4.6. Mastication is medically defined, however, as chewing, or the process of biting and grinding food in preparation for swallowing and digesting. Dorland's Illustrated Dictionary 1128 (31st ed. 2007). Under DC 9905, limited motion of temporomandibular articulation will be assigned a 10 percent rating when the range of lateral excursion is limited from 0 to 4 millimeters (mm) or when the inter-incisal range is limited to 31 to 40 millimeters (mm). A 20 percent rating applies when the inter-incisal range is limited to 21 to 30 mm. Ratings of 30 and 40 percent are available for more restricted range of inter-incisal motion. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, DC 9905 and Note. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion. Pain may result in functional loss, however, if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Mitchell, 25 Vet. App. 32. The criteria for rating scars or disfigurement have changed several times during the course of the appeal; the information in this regard will be discussed further below. The Veteran has argued, including in 1999 and 2000, that he has displacement and limited jaw movement as a residual of his left submandibular gland disability. During the 2000 Board hearing, the Veteran testified that he had increased pain or muscle spasms when he used his jaw for an extended period of time to smile, laugh, yawn, or with similar types of action; but not otherwise with extended use. During an April 2002 VA examination, the Veteran reported that eating did not particularly aggravate his pain, and that the pain did not cause him to change his eating habits. The examiner recorded that the pain also did not limit or impair his mastication, limit his jaw movement, or cause displacement of the mandible. During an August 2004 VA examination, the Veteran denied problems with mastication or swallowing foods, other than needing to stop for a few minutes when he has a stinging or burning sensation or muscle spasm in the floor of the mouth, at which points he would stop eating and chewing for a few minutes and massage the area if there is a cramp. Upon testing, the Veteran was able to open his mouth 3.5-4 centimeters (cm) (or 35 to 40 mm), which the examiner stated was normal. His temporomandibular joints (TMJs) were normal and nontender, facial musculature had normal movement, and he was able whistle, smile, etc. normally. In an addendum report later in August 2004, this examiner noted that the mucosa of the Veteran's tongue was normal, and range of motion of the tongue was normal. During a May 2006 VA examination for scars, the Veteran reported that he had minimal limitation of movement when cramps were occurring. At a May 2006 VA examination for the mouth, throat, etc. conducted by the August 2004 VA examiner, the Veteran again denied problems with mastication or swallowing foods, other than needing to stop for a few minutes when he has a stinging or burning sensation or muscle spasm in the floor of the mouth, at which points he stops eating and chewing for a few minutes and massages the area if there is a cramp. Upon testing, the Veteran was able to open his mouth 4 cm, which the examiner stated was normal. The temporomandibular joints were again normal and nontender, facial musculature was normal, he had normal movement and was able to whistle and smile normally. During an October 2008 VA examination, physical examination showed normal jaw movement, with a vertical opening of 50 mm and left lateral movement of 11 mm. There was a left shift on opening of the mandible, which the examiner noted could potentially be attributed to post-surgical sequelae from the gland removal. This examiner stated that the Veteran would be dependent on artificial replacements for saliva as a result of the loss of the gland, and that there would be an overall decrease in the quality of the saliva that would require him to keep vigilant in his dental hygiene. The examiner further stated that functional limitations due to salivary gland removal included impairment in the wetting, chewing, and swallowing of food; and a requirement for stringent dental hygiene or teeth cleaning. VA treatment records reflect that the Veteran sought emergency treatment in June 2009 for left ear and throat pain, sinus drainage, with a history of TMJ problems and salivary gland stone; he was treated with Cipro. On July 13, 2009, several records noted that the Veteran had pain, tenderness, and swelling in the left jaw at the TMJ area and was unable to fully open his mouth; the assessment was parotid stone versus TMJ. A CT scan on that date showed, among other findings, bilateral temporomandibular joints narrowed with subchondral cysts of the left temporal condyle, and a 4-mm stone in the left side of the floor of the mouth just dorsal to the mandible, possibly in the left submandibular duct. The impression was absent or atrophic left submandibular gland, two tiny punctate calcifications in the left parotid glands without CT evidence for active inflammation; bilateral TMJ degenerative changes worse on the left side; and cervical spondylosis. A few days later, also in July 2009, the Veteran was advised to consult oral surgery for his TMJ problems. In December 2011 arguments, the Veteran referred to these episodes of treatment in 2009, stating that he had a severe infection of the throat due to his salivary gland stone, which affected his TMJ, and that he could not open his mouth for several days and that had developed a permanent "click" when he chews. The June 2013 VA examiner summarized findings from a June 2013 oral examination for VA treatment. At that time, oral health assessment showed a moderate plaque index, significant xerostomia, a high risk of caries (cavities), and fair oral hygiene. TMJ findings were a popping or clicking on the left, maximum incisal opening of 50 mm, which was repeated at 45 and 40 mm; 7 mm left lateral opening, repeated with consistency; and no deviation upon opening. Occlusal findings included a normal mandibular relationship. During the June 2013 VA examination, the examiner found decreased saliva on the left side of the mouth compared to the right. Muscle strength in the muscles of mastication was normal, and the examiner stated that there was no evidence of nonunion of the mandible, or of muscle or nerve damage that would cause impairment in the function of mastication. This examiner noted that, with regard to the treatment record's notation of "significant xerostemia," the medical basis of this relationship showed that only a portion of the xerostomia was attributable to his loss of salivary production from the removed left submandibular salivary gland. The examiner noted that he still had his other two salivary glands on the left and three salivary glands on the right. Thus, the examiner opined that the degree of xerostomia attributable to the removal of the left submandibular gland would be moderate. The examiner also opined that his findings during the examination did not meet the criteria for impairment of mastication, citing medical research as to the functional impairment scale according to degree of mastication difficulty. In a February 2014 VA examination report, this same VA examiner explained that, as there was no history of a fracture of the mandible, there was no nonunion of the mandible. The examiner recorded that the Veteran reported that his disability did not adversely affect his ability to chew. Upon testing, there did not appear to be a decrease in muscle strength, or limitations in opening or moving into excursions of the jaw. Maximum inter incisal range was to 48 mm, which was reduced to 45 mm after repetition; left lateral range was to 6 mm, and to 7 mm after repetition. The examiner stated that the Veteran had nerve damage due to complaints of stinging, burning, and numbness, as discussed above, and that the overall severity of his problem due to the salivary gland disability was moderate. As noted above, under DC 7200, injuries of the mouth will be rated based on impairment of masticatory function and on disfigurement, under the appropriate diagnostic codes. Under DC 9904, displacement of the mandible will be rated as 10 or 20 percent disabling based on the degree of motion and loss of masticatory function. Accordingly, there is some overlap of the symptoms contemplated by these rating criteria; as the Veteran has some of each of these manifestations, the Board must apply the most appropriate code in order to avoid pyramiding. See 38 C.F.R. § 4.14. DC 9905 delineates ratings based on impairment of TMJ movement based on objective measurements. Although the Veteran has asserted that this TMJ problems are due to his salivary gland disability, he is not competent to offer such an opinion due to his lack of medical expertise and the complex nature of the involved bodily systems. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the medical evidence does not clearly relate the Veteran's limited TMJ motion, or popping and clicking of the TMJ area to his salivary gland disability. Nevertheless, these criteria will be used to determine the relative loss of motion in this case, as they most nearly approximate the evidence. Resolving doubt in the Veteran's favor, the evidence establishes that he has had moderate impairment in the function of mastication, including wetting and chewing food, in preparation for swallowing, throughout the appeal period. Although several VA examiners noted that the Veteran denied problems chewing or with mastication, they also noted that he reported having to stop eating or chewing when he would have pain or cramping in his mouth. The October 2008 VA examiner clearly stated that the Veteran has a decrease in the quantity of his saliva, otherwise noted in records as dry mouth or xerostemia, due to his salivary gland disability, and that this resulted in functional impairment of wetting and chewing food. The Veteran's attorney has argued that he has significant xerostemia due to his service-connected salivary gland disability, based on the notation in the June 2013 VA treatment record of significant xerostemia. The June 2013 VA examiner explained, however, that the portion of the Veteran's xerostemia or decrease in saliva that is due to the removal of his left salivary gland is only moderate. This opinion was based on a consideration of all available evidence and on application of medical training and expertise, with reasons clearly stated in the examiner's report. Similarly, this VA examiner stated after another VA examination in February 2014 that the severity of the Veteran's disability overall, after consideration of the decrease in saliva and other symptoms, was moderate. Thus, this VA examiner's opinions in this regard outweigh the June 2013 treatment notation as to the overall degree of xerostemia, and the attorney's non-competent reports, as a lay witness, in this regard. See Jandreau, 492 F.3d at 1377; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (stating that the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). Medical evidence throughout the course of the appeal, including in 2004, 2006, and 2014, also noted that the Veteran had normal strength in his facial muscles and muscles of mastication. Similarly, the most recent VA examiner stated in 2013 and 2014 that there was no evidence of muscle or nerve damage to impair mastication. Although this examiner opined that the Veteran did not have impairment of masticatory function, when considering the evidence as a whole, and resolving doubt in the Veteran's favor, the Board finds that there is compensable impairment. Additionally, the Veteran has had intermittent displacement of the mandible. The October 2008 VA examiner found a left shift on opening of the mandible, although medical records otherwise noted no deviation or displacement. The most recent VA examiner stated in 2013 and 2014 that there was no nonunion of the mandible, explaining that there had been no fracture, such that there could be no nonunion. Further, the evidence shows intermittent limitation of motion of the Veteran's jaw of inter-incisal range (or vertical opening of the mouth) to between 31 and 40 mm, which would be assigned a 10 percent rating under DC 9905. Although the August 2004 and May 2006 VA examiners (including a January 2007 addendum) stated that the Veteran's had normal movement of the jaw, they recorded that he could open his mouth to 3.5-4 cm and 4 cm, respectively; this equals 35 to 40 mm and 40 mm. Similarly, the May 2006 VA examiner stated that the Veteran had minimal limitation of motion of his jaw, before giving the specific measurement in the January 2007 addendum report. During the June 2013 VA examination, the Veteran had popping or clicking on the left, and his maximum measured incisal opening was to 50 mm, but it decreased to 45 and 40 mm upon repetition. During other evaluations, the Veteran's inter-incisal range was from between 45 mm to 50 mm; however, the lower measurements after repetition meet the criteria for the minimum rating based on limitation of temporomandibular movement. Similarly, the Veteran reported increased pain with extended use of his jaw such as with smiling and chewing, and minimal limitation of movement when he experiences muscle cramps, such as in 2000 and 2006. He was unable to fully open his mouth during a flare-up when he sought treatment in 2009, and for several days related to that episode, although exact measurements were not provided at that time. Considering these descriptions of additional loss of function, a 10 percent rating based on limitation of motion of the jaw. 38 C.F.R. § 4.150, DC 9905; DeLuca, 8 Vet. App. at 206. The evidence does not more nearly approximate limitation of the inter-incisal range to 20 to 30 mm or less, however, as required for a rating in excess of 10 percent under DC 9905, even during flare-ups or after repetitive use. The Veteran's left lateral excursion ranged from 6 to 11 mm, including after repeated use, which does not meet the compensable criteria for limitation of motion of the jaw. Moreover, a rating cannot be combined for limitation of lateral excursion and inter-incisal excursion. 38 C.F.R. § 4.150, DC 9905 & Note. In light of the above, a 10 percent rating under DC 9904 for displacement of the mandible, based on moderate impairment of mastication and minimal or 10-percent degree of limited motion, is appropriate. These symptomatology are different from those contemplated by the assigned rating for neurological impairment under DC 8309, so pyramiding is not implicated. The evidence does not more nearly approximate severe displacement of the mandible, as required for the next higher rating of 20 percent under DC 9904. Again, as noted above, the more probative evidence shows that the Veteran retained five of his salivary glands, such that he had only moderate decrease in saliva due to his service-connected disability. Otherwise, the evidence shows impairment of mastication or chewing based on having pain, burning, and cramping in his mouth. The Veteran is already being separately compensated for his pain, burning, stinging, cramping, numbness, and other symptoms as discussed above under DC 8309; thus, it would be improper pyramiding to consider the impairment due to these symptoms in determining the appropriate level of impairment of mastication. Accordingly, there is no more than moderate impairment of mastication under DC 9904. Further, there is no more than moderate loss of motion of the jaw, as discussed above. Regarding DC 7200, although impairment of masticatory function will be rated under DC 9904, this code also provides for a rating based on disfigurement; the code uses the word "and," thereby indicating that multiple ratings may be assigned. As discussed below, the evidence shows slight disfigurement, and one characteristic of disfigurement from the Veteran's surgical scar under the post-2002 criteria. Disfigurement of the head, face, or neck is rated under DC 7800. Prior to August 30, 2002, a 0 percent (noncompensable) rating was applied for a slightly disfiguring scar of the head, face or neck; a 10 percent rating was warranted for a moderately disfiguring scar; and a 30 percent rating required a severely disfiguring scar, which was defined as especially appropriate if the scar produced a marked and unsightly deformity of the eyelids, lips, or auricles. 38 C.F.R. § 4.118, DC 7800 (2001). Under the revised criteria in effect as of August 30, 2002, a 10 percent rating will be assigned for disfigurement of the head, face, or neck with one characteristic of disfigurement. A 30 percent rating is warranted for disfigurement of the head, face, or neck with 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 with two or three characteristics of disfigurement as defined by the regulations. 38 C.F.R. § 4.118, DC 7800 (2008). The characteristics of disfigurement are defined as (1) a scar five or more inches (13 or more centimeters (cm)) in length; (2) a scar at least one-quarter inch (0.6 cm) wide at the widest part; (3) surface contour of the scar elevated or depressed on palpation; (4) a scar adherent to underlying tissue; (5) skin hypo- or hyper- pigmented in an area exceeding six square inches (39 square cm); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square cm); (7) underlying soft tissue missing in an area exceeding six square inches (39 square cm); and (8) skin indurated and inflexible in an area exceeding six square inches (39 square cm). 38 C.F.R. § 4.118, Note (1) (2008). The criteria for rating scars were again revised, effective October 23, 2008. Those criteria are for consideration, however, only for claims filed on and after October 23, 2008, unless the Veteran specifically requests that to be rated under the new criteria. See 38 C.F.R. § 4.118, DCs 7800 to 7805 (2015); 73 Fed. Reg. 54,708 (Sept. 23, 2008). There has been no request for application of these codes; however, they are discussed briefly below in light of this case's complex history. The Veteran argued in January 2005 that his VA treatment records showed moderate disfigurement of his jaw due to the surgical scar for his salivary gland disability. As discussed below, however, the weight of the evidence shows that the Veteran's scar was no more than slightly disfiguring under the pre-2002 rating criteria. There is evidence of one characteristic of disfigurement under the post-2002 criteria; thus, a 10 percent rating is warranted from August 30, 2002, forward, as a rating cannot be applied prior to the effective date of the amended criteria. A separate compensable rating is also not warranted under the post-2008 criteria. The Veteran's surgical scar has been measured as 6.5 cm in length by 1 mm in width, or as 6.3 cm by 0.3 cm. See August 2004 and May 2006 VA examination reports. Thus, it is less than 13 cm in length and less than 0.6 cm in width; it is not disfiguring based on size of the scar. See 38 C.F.R. § 4.118, Note (1) (2008). There were consistent findings of no adherence to underlying tissue and that the scar was superficial, normal texture of the scar, and no induration or inflexibility of the skin; thus, these disfiguring characteristics have not been established. Id. There was a notation of hyperpigmentation in the May 2006 VA examination report specific to the scar, although other examinations, such as in August 2004, noted that the color of the scar was normal. Nevertheless, because the Veteran's scar does not exceed 38 square cm (or 6 square inches), this notation of abnormal pigmentation does not establish a characteristic of disfigurement. Id. The Veteran and his attorney have argued that he has disfigurement warranting a separate rating due to indentation of the jaw, depressed scar, loss of subcutaneous tissue, and asymmetry. There is conflicting medical evidence in this regard. The August 2004 VA examiner found no elevation or depression of the scar. A December 2004 VA ear, nose, throat (ENT) clinic treatment record noted that the Veteran was bothered by depression of his scar and perceived asymmetry due to the removal of his salivary gland. The provider stated that, upon physical examination, the scar did not appear to be depressed, but there was mild to moderate asymmetry of the submental fat. The provider further stated that the depression perceived by the Veteran in the area of gland removal was not as apparent to her, but that there was moderate asymmetry of submental fat. In May 2006, a VA examiner for the mouth, etc. stated that the Veteran's surgical scar was not elevated or depressed, and there was no significant tissue loss. In a January 2007 addendum report, this examiner stated that there was no significant indentation of the left submandibular area. In a May 2006 report specific to scarring, another VA examiner stated that the scar was depressed on palpation and that there was minimal asymmetry of the neck. This examiner provided a color photograph of the scar to show any disfigurement. A July 2009 CT scan for VA treatment purposes found that, internally, there was asymmetry based on an absent or much smaller left submandibular gland. During a June 2013 VA examination, the Veteran was noted to have mildly decreased loss of subcutaneous tissue of the left mandible when compared to the right upon palpation, but the examiner stated that there was no disfigurement. In February 2014, a VA examiner noted a slight indentation symmetry inferior to the left body of the mandible upon concentrating focusing, but stated that there was no readily noticeable or significant disfigurement. Considering the lay and medical evidence as a whole, the Veteran's complaints of depressed scar, loss of underlying tissue, indentation, and asymmetry are essentially the same manifestation of his scar. As summarized above, although one VA examiner in May 2006 found a depressed scar upon palpation and minimal asymmetry of the neck, the other medical providers and VA examiners, both before and after May 2006, found no depression of the scar itself, but stated that there was loss of submental fat or underlying tissue or indentation that they termed as asymmetry. Again, the 2004 VA ENT clinic provider noted that, although the Veteran complained of a depressed scar and asymmetry, the scar was not actually depressed upon physical examination, and the depression was not apparent to her, although there was asymmetry of the submental fat. VA examiners before and after this treatment record noted that the Veteran's scar on the crease of his neck was well-healed, barely or not visible, caused no significant residual, was not disfiguring or had no readily noticeable disfigurement, and did not cause asymmetry of any features of the face or neck. See VA examination reports in April 2002, August 2004, May 2006 report for the mouth, etc. and January 2007 addendum, June 2013, and February 2014. The photograph provided by the May 2006 examiner reflects a barely visible scar on the crease of the neck, based on the Board's observation. The established loss of underlying tissue, as such, does not qualify for a compensable evaluation under the applicable rating criteria for disfigurement. Because the Veteran's scar does not exceed 38 square cm (or 6 square inches), the missing underlying tissue does not establish a characteristic of disfigurement under the post-2002 rating criteria. See 38 C.F.R. § 4.118, DC 7800, Note (1) (2008). Further, although a 30 percent rating under these criteria contemplates visible or palpable tissue loss, such a rating also requires "either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips)." Id. There is no evidence of gross distortion. The records in 2004, 2013, and 2014 referred to the mild or moderate loss of tissue or submental fat and to the slight indentation as an "asymmetry"; and the 2009 CT scan noted an "asymmetry" due to the absent left submandibular gland. Nevertheless, this does not establish asymmetry of one feature or a pair of features of the face or neck as contemplated by this regulation. Rather, the Veteran's scar is below the chin area, at the crease of his neck; and no other single or paired feature is affected by his salivary gland removal and related scarring or tissue loss. Resolving doubt in the Veteran's favor, however, the mild to moderate loss of underlying tissue or fat, slight indentation, and related notations of asymmetry are analogous to and most nearly approximate the definition of a scar that is depressed on upon palpation, as this manifestation was described by the single VA examiner in 2006. This is one characteristic of disfigurement, thereby warranting a 10 percent rating under the post-2002 criteria. Id. The medical notations demonstrate that these qualities may be classified differently, but they pertained to the Veteran's same complaints regarding the appearance and feeling of his scar. Further, the Veteran and his attorney are not competent, due to a lack of medical training or expertise, to diagnose or give an opinion as to the medical terminology for these characteristics. Jandreau, 492 F.3d at 1377. Importantly, to use overlapping manifestations to support different characteristics of disfigurement would amount to impermissible pyramiding. 38 C.F.R. § 4.14. The 10 percent rating based on one characteristic of disfigurement can only be effective as of the date of that amended regulation, August 30, 2002. Prior to that date, under the pre-2002 regulation criteria, the evidence only shows slight disfigurement as a result of the loss of tissue, indention, or depressed scar, which were noted to be slight or mild to moderate. See 38 C.F.R. § DC 7800 (2001). In light of the lack of other aspects of disfigurement, although the tissue loss was noted to be up to moderate in severity, the Board finds that the overall disability picture showed no more than slight disfigurement due to the surgical scar. Although analysis under the post-2008 criteria for scars has not been requested, the Board notes that the criteria for disfigurement remained the same as the 2002 criteria discussed above. Otherwise, as pertinent to this case, a separate rating in addition to the rating for disfigurement may be awarded under DC 7804 if a scar is painful or unstable, or for other disabling effects due to the scar itself under DC 7805. See 38 C.F.R. § 4.118, DCs 7800 to 7806 (2015). There is no indication that the Veteran's surgical scar has been unstable. Further, he has not argued that he has pain due to the surgical itself, which is generally consistent with the medical records, particularly since the October 23, 2008, effective date of the amended rating criteria. Although VA examination reports in August 2004 and May 2006 noted that the scar was minimally tender, a May 2006 VA examination report specific to the scar noted that the scar was not painful. In contrast, as noted above, the Veteran has frequently complained of pain in the floor of his mouth, which is contemplated by the rating for neurological impairment. Thus, a separate or higher rating is not warranted for the Veteran's scar based under the post-2008 criteria. Id. Finally, the Veteran's attorney has argued at times that a more appropriate diagnostic code for evaluating the service-connected salivary gland disability would be DC 7305, pertaining to duodenal ulcers. The Veteran has already been separately assigned a 20 percent rating for duodenal ulcer, effective since June 22, 1972, under DC 7305. Moreover, although both conditions involve digestion, there is no medical connection of record between disability associated with the duodenum and disability of the salivary gland. Thus, that diagnostic code is not appropriate. All potentially applicable diagnostic codes have been considered, and there is no other code that more closely describes the anatomical localization and symptomatology of the Veteran's service-connected disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); 38 C.F.R. §§ 4.20, 4.27. Separate ratings have been assigned based, in part, on the resolution of doubt in the Veteran's favor. The preponderance of the evidence is against any other separate or higher schedular ratings; thus, the benefit-of-the-doubt standard of proof does not apply, and this aspect of the claim must be denied. 38 C.F.R. § 4.7. ORDER Entitlement to schedular rating in excess of 20 percent for residuals of a left salivary gland removal based on neurological impairment is denied. For the entire appeal, a separate schedular rating of 10 percent for moderate displacement of the mandible, based on limited motion and impaired masticatory function, due to residuals of left salivary gland removal, is granted. Effective from August 30, 2002, a separate schedular rating of 10 percent for disfiguring scar, as a residual of left salivary gland removal, is granted. REMAND The Veteran and his attorney have argued that he has additional symptoms related to his salivary gland disability that are not contemplated by the schedular rating criteria, and that these resulted in marked interference with his employment prior to his retirement. VA must consider whether an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)(1) for symptoms of the Veteran's disability that are not contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). This includes consideration of an extraschedular evaluation based on multiple disabilities with combined effects that are exceptional and not captured by the schedular evaluations. These questions must be referred to the VA's Director of Compensation and Pension Services or the Undersecretary for Benefits; the Board cannot adjudicate this question in the first instance. Moreover, in March 2012, the Board previously directed the AOJ to refer this case for extraschedular consideration, and this was not accomplished. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Additionally, in March 2012, the Board referred the issues of secondary service connection for a teeth condition and disability manifested by trouble swallowing; the AOJ did not adjudicate these separate matters. As discussed above, the assigned schedular ratings contemplate difficulty swallowing and difficulty chewing and wetting food related to the Veteran's service-connected disability. There is insufficient evidence for the Board to adjudicate the question of whether a separate rating is warranted for a condition of the Veteran's teeth as secondary to the salivary gland disability. As noted above, the Veteran has several missing teeth, and the October 2008 VA examiner indicated that the Veteran's decrease in saliva due to his service-connected disability would result in the Veteran needing to have stringent dental hygiene and teeth cleaning. The need to be more careful with dental hygiene is not, in itself, a disability. Further, dental conditions are rated for specific teeth, and it is unclear whether the Veteran's claimed conditions of the teeth were caused or aggravated by his service-connected disability. This issue is inextricably intertwined with the issue of entitlement to an extraschedular rating. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Adjudicate the issue of entitlement to service connection for the Veteran's individual missing teeth or other dental condition of the teeth, claimed as secondary to service-connected salivary gland disability. These issues should not be certified to the Board unless a timely substantive appeal is received. 2. Then, refer the issue of entitlement to an extraschedular rating for residuals of left salivary gland removal to VA's Director of Compensation and Pension Services or the Undersecretary for Benefits, for adjudication of entitlement to an extraschedular rating for such disability under 38 C.F.R. § 3.321(b)(1). 3. If any benefit sought on a perfected appeal remains denied, issue a supplemental statement of the case before returning the matter to the Board, if otherwise in order. Because the Veteran has a different representative for the issues pertaining to his increased rating issues for his feet conditions on appeal, any SSOC for the increased rating issues should also only be sent to the appointed representative for that appeal. Then, if the benefits sought remain denied, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs