Citation Nr: 1646639 Decision Date: 12/13/16 Archive Date: 12/21/16 DOCKET NO. 08-36 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a rating in excess of 10 percent for suborbital neuralgia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1988 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board previously remanded this claim for further evidentiary developments in July 2012, October 2014, and January 2016. In a July 2012 Board decision, the claim was remanded in order to afford the Veteran a personal hearing before the Veterans Law Judge (VLJ). The Veteran was scheduled to appear at the Milwakuee RO for a hearing, but she failed to appear. The Board most recently remanded this case for an additional Compensation and Pension (C&P) examination. The Veteran, however, failed to appear for the examination and did not offer an excuse for her absence. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran suffers from severe, incomplete paralysis. CONCLUSION OF LAW The criteria for a rating of 30 percent for suborbital neuralgia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.114, Diagnostic Code 8205 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claim. Specifically, VA has obtained records of the Veteran's medical records, both private and from the VA. Lay statements of the Veteran are associated with the record and have been reviewed. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and appellate review may proceed Pertinent Law & Analysis The Veteran believes that she is entitled to a rating in excess of 10 percent for suborbital neuralgia. For the following reasons, the Board finds that an increase is warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Suborbital neuralgia is appropriately rated under Diagnostic Code 8205, which covers ratings for diseases of the cranial nerves. Currently, the Veteran is assigned a 10 percent rating. A minimum 10 percent rating is warranted when the evidence demonstrates the Veteran suffers from moderate, incomplete paralysis. A 30 percent rating is warranted when the Veteran suffers from severe, incomplete paraplysis. Lastly, a 50 percent rating occurs when a veteran suffers from complete paralysis. A review of the facts reveals the following: throughout 1999, the Veteran sought recurrent nerve blocks due to the "throbbing, shooting, worse, continuous" pain in her head. The doctor recommended the nerve blocks due to the Veteran's severe pain. These injections continued throughout 2003. In between injections, the Veteran sough pain relief through prescription narcotics and steroids. In March 2003, the Veteran's private treating provider determined her condition was severe and chronic. In June 2003, the Veteran underwent a C&P examination in which the examiner determined the Veteran suffered from pain which was "subjectively severely affecting her life." In most instances, changes in the barometric pressure served as a catalyst for her pain. On a bad month, the Veteran missed work two or three days due to pain. In September 2006, the Veteran submitted a note in which she stated she was frequently unable to work due to the severity of her pain. In December 2006, the Veteran resumed facial injections to block the nerve pain; that same month, her doctor gave her notes to miss work due to incapacitation from the pain. Throughout 2007 and 2008, the Veteran went through a series of different narcotics at an attempt at pain relief. In January 2008, the Veteran submitted a note stating that she believed she was entitled to a 30 percent rating for her condition. Throughout 2008 and 2009, the Veteran received nerve blocks for the pain and continued to receives treatment at the VA's pain center on a monthly basis. In July 2012, the Veteran submitted a statement to the RO, asking for a 50 percent rating for her condition, as she believed she suffered from severe neuralgia. The Veteran explained that she suffered from serious flare-ups at least twice a month, with shooting, burning pain over her right eye and down the right side of her head and down the front of her face to her cheek. The pain was of such severity that it made her sick in the stomach. The Veteran believed her symptoms had worsened over the years, and the pain had increased in surface area. During her flare-ups, she was confined to her bed, and her husband was unable to sleep with her. Lastly, the Veteran stated she had tried every medication available but nothing helped, and the VA no longer offered her the nerve blockers, and she was unable to afford them on her own. In June 2016, the Veteran was scheduled for a C&P examination for her condition, yet she failed to appear. The Veteran did not give a reason for her absence. Applying the law to the facts of the case, the Board finds that the Veteran is entitled to a 30 percent disability rating for her condition. It is clear that the Veteran suffers from neuralgia, incomplete paralysis. The Veteran's medical records demonstrate that her neuralgia attacks cause her severe pain-the Veteran's doctors attest to the severity and chronicity of her pain, and the Veteran herself has stated that she suffered from severe pain since 1999. The Veteran, however, is not entitled to a 50 percent rating because nothing in ther medical records demonstrate that she suffers from complete paralysis. While the Veteran frequently complains of pain, she has never stated that she suffers from complete paralysis. Thus, the most appropriate rating for the Veteran is a 30 percent rating for severe, incomplete paralysis. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Id. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describes the Veteran's disability levels and symptomatology pertaining to her service-connected suborbital neuralgia. The evidence shows symptoms such as severe pain, which is contemplated by the rating criteria. Thus, there is nothing exceptional or unusual about the Veteran's disability picture. Accordingly, the Veteran's 30 percent rating under DC 8205 contemplates her symptomatology and disability level. 38 C.F.R. § 4.130, DC 9411. Therefore, the Board finds that the schedular rating currently assigned reasonably describes the Veteran's disability level and symptomatology, for the Veteran's disability for the entire period of appeal. Lastly, the Board notes that, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presented disability is not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication 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. ORDER A rating of 30 percent for suborbital neuralgia is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs