Citation Nr: 1605279 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 06-20 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for residuals of left cerebellum infarction, to include facial numbness and facial paresthesia. REPRESENTATION Appellant represented by: Bryan Held, Accredited Agent ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1996 to June 2005, with over 11 months of prior active service. This matter comes to the Board of Veterans' Appeals (Board) from a November 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. These matters were previously remanded by the Board in September 2008, May 2010, November 2013, and most recently in October 2014. As discussed below, the Board finds there has been substantial compliance with prior remand directives, such that an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall where there was substantial compliance with remand directives). FINDINGS OF FACT 1. Prior to February 17, 2015, the Veteran's residuals of left cerebellum infarction manifested as facial numbness and facial paresthesia resulting in no worse than moderate incomplete paralysis of the left fifth (trigeminal) cranial nerve. 2. From February 17, 2015, the Veteran's residuals of left cerebellum infarction manifested as facial numbness and facial paresthesia resulting in no worse than moderate incomplete paralysis of the left and right fifth (trigeminal) cranial nerves. CONCLUSION OF LAW The criteria for an increased disability rating of 20 percent for residuals of left cerebellum infarction, to include facial numbness and facial paresthesia, have been met from February 17, 2015, but no earlier. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.21, 4.25, 4.26, 4.124a, Diagnostic Code (DC) 8205 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran's claim of entitlement to an initial rating in excess of 10 percent for residuals of left cerebellum infarction, to include facial numbness and facial paresthesia, arises from his disagreement with the initial disability rating assigned following the grant of service connection. The Board notes that once the underlying claim, such as service connection, is granted, the claim is substantiated; therefore, additional notice is not required and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Therefore, no additional notice is required with respect to the Veteran's claim on appeal. Regarding the duty to assist, the RO has obtained the Veteran's VA treatment records, private treatment records, and lay statements, and all such records have been associated with the claims file. Following the September 2008 Board remand, the Veteran was afforded a VA examination in February 2009. As directed by the May 2010 Board remand, the RO obtained updated private and VA treatment records. After the November 2013 Board remand, the RO obtained a supplement VA opinion in order to clarify a November 2012 VA opinion, and updated private and VA treatment records were also obtained by the RO. Most recently, after the October 2014 Board remand, the Veteran was afforded an additional VA examination in February 2015. Given this development, the Board finds that there has been substantial compliance with prior remand directives, such that no further remand is required. See Stegall, 11 Vet. App. 268; see also Dyment, 13 Vet. App. 141. Significantly, the most recent February 2015 VA examination was obtained in order to clarify prior VA opinions. The VA examiner reviewed the Veteran's claims file, obtained a medical history, and conducted a thorough clinical examination, after which he provided the requested opinion which was properly supported by an adequate rationale. Therefore, the February 2015 VA examination is adequate to adjudicate the Veteran's appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the prior medical history and examinations, and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Neither the Veteran nor his representative has identified any additional evidence to be added to the claims file. As all necessary development has been accomplished, no further notice or assistance is required for a fair adjudication of the Veteran's claim and, therefore, appellate review may proceed without prejudice to the Veteran. II. Initial Rating - Residuals of Left Cerebellum Infarction Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2015). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2015). The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2015). Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initial rating assigned, consideration must be given to the evidence since the effective date of the claim as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). As discussed herein, the Board finds that the evidence of record does not warrant the assignment of staged ratings for any period on appeal. The Veteran's residuals of left cerebellum infarction are rated as 10 percent disabling from June 29, 2005 under DC 8205, indicating moderate incomplete paralysis of the fifth (trigeminal) cranial nerve. See 38 C.F.R. § 4.124a, DC 8205 (2015). Pursuant to DC 8205, a 10 percent disability rating is warranted for moderate incomplete paralysis of the fifth (trigeminal) cranial nerve. Id. A 30 percent disability rating is warranted for severe incomplete paralysis of the fifth (trigeminal) cranial nerve. Id. A maximum schedular 50 percent disability rating is warranted for complete paralysis of the fifth (trigeminal) cranial nerve. Id. The ratings for the cranial nerves are for unilateral involvement; bilateral involvement is combined without application of the bilateral factor. Id.; cf. 38 C.F.R. §§ 4.25, 4.26 (2015). Neuritis, cranial or peripheral, 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. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2015). Neuralgia, cranial or peripheral, 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 (2015). Turning to the evidence of record during the relevant appeal period of June 29, 2005 to the present, VA treatment records from July 2005 document the Veteran's complaints of left lower lip numbness that began four days prior, without any other associated cranial nerve findings, including limb weakness or numbness. A July 2005 private treatment record documents that the Veteran had near-resolution of his neurological defect except for some issues with his fine motor skills. The Veteran was first afforded a VA general medical examination in August 2005. The examiner noted the Veteran's medical history, including a left side posterior inferior cerebellar artery infarction in June 2003, with subsequent complications of a dissected left vertebral artery. The Veteran reported his recent hospital admission with facial numbness and facial paresthesias around his mouth, chin, and tip of the nose, which he stated had persisted since a prior admission in January 2005. The examiner noted that imaging studies of the brain had not revealed any new pathology other than the Veteran's previous infarct. A neurological review of systems showed normal cranial nerves II-XII with the exception of sensory changes along both sides of his face in all distributions. Motor strength was normal in all four extremities and coordination was intact. The examiner assessed the Veteran's condition as vertebral artery dissection and infarction of the left cerebellum in June of 2003 with moderate to severe functional impairment in instrumental activities of daily living (IADLs). January 2006 VA treatment records document that the Veteran experienced new perioral tingling and difficulty writing in September 2005, without new changes on an MRI, which showed that the cranial nerves were intact. In February 2006, a VA physician noted that there had been no recurrence of any neurological deficits since the Veteran's stroke, and that his perioral paresthesias were not due to ischemic cerebral insults, as they did not fit a specific vascular distribution and because two brain MRIs failed to show new ischemic lesions. The Veteran was noted to continue to improve from his left-sided dysmetria with only a very subtle left overshoot and an otherwise normal neurological examination. VA treatment records from June 2007 document the Veteran's ongoing perioral numbness, which was constantly present. Similarly, VA treatment records from January 2008 and July 2008 document his ongoing perioral numbness, without change. The Veteran was afforded an additional VA examination in February 2009. At that time, he reported symptoms of perioral numbness; however, the examiner concluded that no impairment or need for restrictions or limitations resulted from this symptom. Additionally, although the Veteran reported occasional swallowing, speech impairment, and a circular region of numbness around his upper and lower lips, his neurologic examination was normal, with no significant associated impairment from his reported symptoms. A July 2010 private treatment record documents that the Veteran had no residual deficits from his 2003 vertebral artery dissection leading to a cerebrovascular accident (CVA). The Veteran was again afforded a VA examination in December 2010. At that time, the examiner documented that a review of the cranial nerves found full visual fields, with full extraocular movements and no ptosis, normal facial sensation, and normal, symmetric facial strength. The examiner concluded that it was likely that the Veteran had moderate to severe functional impairment in performing his occupation during flare-ups of his neurologic symptoms; however, it was also stated that the Veteran's service-connected conditions did not preclude him from performing some type of sedentary work. An additional VA examination was provided to the Veteran in October 2012. An examination of the cranial nerves identified the affected nerve as the fifth cranial (trigeminal) nerve, with symptoms including the following: mild bilateral paresthesias/dysesthesias of the upper face, eye, and/or forehead, mid-face, lower face, and side of mouth and throat; mild bilateral numbness of the upper face, eye, and/or forehead, mid-face, lower face, and side of mouth and throat; mild difficulty swallowing; increased salivation, and violent coughing spasms associated with onset of headaches only. Muscle strength testing of the fifth cranial nerve was normal on the right side, but mildly impaired on the left side; additional muscle testing of the cranial nerves was normal. A sensory examination of the fifth cranial nerve revealed decreased sensation on the left side of the upper face, eye, and/or forehead, mid-face, and lower face. The examiner summarized the Veteran's overall condition as moderate incomplete paralysis of the left fifth cranial (trigeminal) nerve. Finally, the examiner also noted that the Veteran's condition resulted in functional impact upon his ability to work. The examiner identified continued balance issues; continued memory, mood, and spatial issues; and limitations on walking/bending/stooping/lifting/carrying loads in excess of ten pounds. Sedentary work tasks would be limited to phone and computer use on a limited basis due to difficulties with prolonged sitting, standing, and balance issues as well as ocular triggers for migraine headaches and the use of fluorescent lighting as it was also a trigger for headaches. The examiner concluded that the Veteran would be unable to secure or maintain substantially gainful employment. In March 2014, VA obtained an expert medical opinion to clarify the October 2012 VA examiner's opinion regarding the Veteran's employability due to his neurologic condition. The VA examiner noted that the a lumbar and cervical spine examination revealed disturbance in locomotion, gait, and station; however, due to overwhelming overlap in symptomatology with respect to both the residuals of infarction of the left cerebellum with impairment of the fifth cranial nerve and symptoms consistent with both cervical and lumbar degenerative arthritis with regard to instability of station and disturbance of locomotion, the examiner was unable to provide an opinion without resorting to mere speculation as to what degree each condition contributed to the Veteran's disturbance in locomotion, gait, and station. In April 2014, the same VA examiner again reviewed the claims file and stated that due to an overwhelming overlap in symptomatology and objective data during previous examinations, he was unable to determine whether the Veteran had an identifiable and distinct impairment in the upper or lower extremities resulting from his left cerebellar infarct rather than from his degenerative arthritis in his lumbar and cervical spine without resorting to mere speculation. The examiner stated that this was well supported and substantiated in peer-reviewed medical texts and journals pertinent to the subject matter in question. Most recently, in February 2015, the Veteran was afforded an additional VA examination. The examiner identified the affected nerve as the fifth cranial (trigeminal) nerve, with associated symptoms including the following: mild dull pain bilaterally in the upper face, eye, and/or forehead, mid-face, lower face; mild paresthesias/dysesthesias bilaterally in the upper face, eye, and/or forehead, mid-face, lower face; and mild numbness bilaterally in the upper face, eye, and/or forehead, mid-face, lower face). Muscle strength testing was normal. A sensory examination of the upper face/forehead was normal; however, sensation in the mid-face and lower face was decreased. The examiner summarized the Veteran's overall condition and resulting impairment as moderate incomplete bilateral paralysis of the fifth cranial (trigeminal) nerve. The examiner also stated that the Veteran's condition did not have a functional impact upon his ability to work. Notably, the examiner concluded, based upon a citation to a medical journal, that the Veteran's abnormal facial sensation following his left-sided posterior inferior cerebellar artery infarction was most likely attributable to a central poststroke pain secondary to spinothalamic tract nerve damage. He stated that the Veteran's condition had been stable since his stroke, and that the condition did not interfere with his activities of daily living. Notably, the examiner concluded that the Veteran's central poststroke pain was caused by damage to his brainstem, and not by damage to his fifth cranial nerve. As such, his pain was a residual deficit of his stroke and was not caused by peripheral nerve damage. Additionally, he noted that the remainder of the examination showed no evidence of significant or impaired cerebellar dysfunction, which was associated with his type of stroke. The Veteran had no weakness in his upper or lower extremities, with only intermittent difficulties with balance, occurring in very specific settings, which did not hinder his ability to exercise. Further, the Veteran reported participating in upper body exercises with weight more than 10 pounds. As such, the examiner concluded that the Veteran did not have significant impairment in his locomotion, balance, or ability to carry more than 10 pounds because of his stroke. After a review of the evidence of record, the Board finds that an increased 20 percent disability rating is warranted for moderate incomplete bilateral paralysis of the fifth cranial (trigeminal) nerve from February 17, 2015. Prior to February 17, 2015, the preponderance of the evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for residuals of left cerebellum infarction, to include facial numbness and facial paresthesia. Significantly, in order to warrant an increased 30 percent disability rating pursuant to DC 8205, the Veteran's residuals of left cerebellum infarction must result in severe incomplete paralysis of the fifth (trigeminal) cranial nerve. See 38 C.F.R. § 4.124a, DC 8205. Likewise, an increased 50 percent disability rating requires complete paralysis of the fifth (trigeminal) cranial nerve. Id. As discussed above, prior to February 17, 2015, the Veteran's residuals of left cerebellum infarction resulted in largely stable symptoms of perioral and facial numbness, best summarized by the October 2012 VA examiner as moderate incomplete paralysis of the left fifth cranial (trigeminal) nerve. However, as of February 17, 2015, a VA examiner noted that the Veteran's condition and resulting impairment was best summarized as moderate incomplete bilateral paralysis of the fifth cranial (trigeminal) nerve. Notably, the ratings for the cranial nerves are for unilateral involvement; bilateral involvement is combined without application of the bilateral factor. See 38 C.F.R. §§ 4.25, 4.26, 4.124a, DC 8205. Therefore, after consideration of the findings of the February 2015 VA examiner, the Board finds that an increased 20 percent disability rating (representing a combined 10 percent disability rating for moderate incomplete paralysis of the left fifth cranial (trigeminal) nerve and a 10 percent disability rating for moderate incomplete paralysis of the right fifth cranial (trigeminal) nerve) is warranted from February 17, 2015. The Board has also considered whether an initial rating in excess of 10 percent is warranted under an alternate diagnostic code; however, the evidence does not warrant utilization of an alternate diagnostic code, including those regarding cranial or peripheral neuritis or neuralgia. See 38 C.F.R. §§ 4.123, 4.124. The Board also acknowledges the Veteran's assertion that his residuals of left cerebellum infarction, to include facial numbness and facial paresthesia, are worse than contemplated by the assigned 10 percent disability rating. His December 2005 notice of disagreement (NOD) asserted that VA failed to consider that his affected artery was still blocked. Similarly, his June 2006 VA Form 9 substantive appeal asserted that VA did not consider that the dissected, blocked artery which continued to limit his physical activity. Indeed, the Veteran's reports of observable symptomatology are probative, and have properly been considered by the Board herein. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that such statements attempt to identify the current severity of a complex neurologic condition, the Board finds them to be less probative than the objective medical opinions of record, as the Veteran is not shown to possess complex medical expertise in neurology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In conclusion, prior to February 17, 2015, the preponderance of the evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for residuals of left cerebellum infarction, to include facial numbness and facial paresthesia. However, resolving any reasonable doubt in favor of the Veteran, an increased 20 percent disability rating is warranted for moderate incomplete bilateral paralysis of the fifth cranial (trigeminal) nerve from February 17, 2015. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.124a, DC 8205; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Extraschedular & TDIU Consideration The Board has also considered whether referral for an extraschedular rating is warranted regarding the Veteran's claim of entitlement to an initial rating in excess of 10 percent for residuals of left cerebellum infarction. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran'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). If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (2015) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Board finds that the schedular criteria are adequate to rate the Veteran's residuals of left cerebellum infarction for the entire period on appeal. In other words, the Veteran does not have any symptoms from his residuals of left cerebellum infarction that are unusual or different from those contemplated by the schedular rating criteria. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's residuals of left cerebellum infarction, and the Board is not required to remand the matter for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). Finally, the evidence does not indicate that the Veteran's residuals of left cerebellum infarction alone preclude him from securing or following a substantially gainful occupation. While some functional impact is documented resulting from his condition, including moderate to severe functional impairment in IADLs by the August 2005 VA examiner, other evidence indicates that there was little to no functional impact. For example, the February 2009 VA examiner found no significant associated impairment resulting from the Veteran's condition. Similarly, the July 2010 private physician stated there were no residuals from the Veteran's stroke. The December 2010 VA examiner found moderate to severe functional impairment during flare-ups of the Veteran's neurologic symptoms, but concluded that his service-connected conditions did not preclude him from performing some type of sedentary work. The October 2012 VA examiner's opinion was internally inconsistent. He first noted some functional impact upon the Veteran's ability to work, including issues with locomotion, balance, and lifting more than 10 pounds. He also identified difficulties as a result of the Veteran's additional service-connected headache condition, which is not before the Board. The examiner then pointed out some sedentary work tasks that could be performed by the Veteran, but ultimately concluded that the Veteran would be unable to secure or maintain substantially gainful employment. The February 2015 VA examiner's opinion, which was obtained in order to clarify the internally inconsistent October 2012 VA examiner's opinion, concluded that the Veteran's condition did not have a functional impact upon his ability to work, including that the Veteran did not have significant impairment in his locomotion, balance, or ability to carry more than 10 pounds because of his stroke. Therefore, after considering the evidence of record, including as discussed above, the Board finds that the Veteran's residuals of left cerebellum infarction, when considered alone, do not preclude him from securing or following a substantially gainful occupation. Consequently, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the Veteran or the evidence of record in conjunction with the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An increased disability rating of 20 percent for residuals of left cerebellum infarction, to include facial numbness and facial paresthesia, is granted from February 17, 2015, but no earlier. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs