Citation Nr: 1752985 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-08 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a separate compensable disability rating for nerve dysfunction of the right side of the neck. 2. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to May 13, 2014. (The issue of entitlement to service connection for lumbar spine disability is addressed in a separate decision.) REPRESENTATION Appellant represented by: Stephanie P. Grogan, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran had active service from September 1970 to August 1974, and from August 1974 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied entitlement to an increased rating for a scar of the right neck. Service connection for lumbar spine disability was denied in a June 2013 rating decision and the Veteran properly perfected an appeal of that rating decision to the Board. The Veteran testified at Board videoconference hearings in July 2011 and in February 2017. Copies of the transcripts have been associated with the file. At the February 2017 hearing, the Veteran submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2017). In an October 2014 rating decision, the RO granted a 30 percent disability rating for the Veteran's scar of the right side of his neck under Diagnostic Code 7800 effective November 6, 2012; a 10 percent rating was assigned prior to November 6, 2012. In the same rating decision, the RO also granted a separate 10 percent evaluation under Diagnostic Code 7804 to the service-connected right neck scar for pain and a noncompensable evaluation for nerve dysfunction associated with his scar under Diagnostic Code 8207 as of November 6, 2012. A July 2017 rating decision granted entitlement to TDIU from May 13, 2014. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). In May 2012 and March 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development and it has now been returned to the Board. The Board finds that the AOJ substantially complied with the mandates of the Board remand including the provision of a VA medical examination and obtaining medical opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2015 Board decision, the Board denied entitlement to higher disability ratings for the service-connected right side of neck scar under Diagnostic Codes 7800 and 7804. In the March 2015 Board decision, the Board took jurisdiction over the claim for TDIU since the Veteran asserted that he was unemployable due to the scar on the right neck in the May 2014 Application for Increased Compensation Based on Unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board lastly notes that the above issues were the subject of two Board hearings presided over by different Veterans Law Judges. In September 2017 correspondence, the Board explained to the Veteran and his representative that in light of the separate hearings, the issues at hand would be decided by a panel of three VLJs, and that the Veteran therefore was entitled to a third Board hearing with respect to the third VLJ to be assigned to the panel. The Veteran was requested to indicate whether he in fact desired a third hearing, or whether he waived his right to a hearing before the third VLJ. He was further advised that if he did not respond within 30 days, the Board would assume he did not want a third hearing. He never responded to the September 2017 correspondence. The Board therefore will proceed with the appeal. The issue of entitlement to TDIU prior to May 13, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The service-connected nerve dysfunction due to the scar on the right neck is not shown to be productive of at least moderate incomplete paralysis. CONCLUSION OF LAW The criteria for a compensable rating for nerve dysfunction due to the scar on the right neck have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Code 8207 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met its duty to notify for the claim. The Board finds that the Veteran has been provided adequate notice. The record shows that the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice letters pertaining to the issue on appeal in January 2009 and June 2014. The Board also finds the Veteran has been provided adequate assistance in response to the claim. The Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) records are associated with the file. Private medical evidence is associated with the file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the claim. The Veteran underwent a VA neurological examination in March 2016, during which the severity of the nerve dysfunction due to the scar on the right neck was evaluated. The Board finds that the VA examination is adequate for adjudication purposes. The examination was performed by a medical professional based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examination report is fully descriptive, and addressed the criteria necessary to effectively evaluate the Veteran's service-connected disability. The Board finds that for these reasons, the Veteran has been afforded an adequate examination and VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The duties to notify and assist the Veteran have been met. No further notice or assistance to him is required in this appeal. In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that that the Veterans Law Judge (VLJ) who conducts a Board hearing fulfill duties to (1) fully explain the issue and (2) suggest the submission of evidence that may have been overlooked. A review of the transcripts of the July 2011 and February 2017 hearing demonstrates that the VLJs substantially complied with the requirements set forth in Bryant. At the videoconference hearings, the Veteran was assisted by a representative. The undersigned VLJs' questions and the oral testimony of the Veteran focused on the elements necessary to substantiate the Veteran's claims on appeal. The Board therefore finds that, consistent with Bryant, the VLJs who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103 (c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. As the duties to notify and assist the Veteran have been met, no further notice or assistance to him is required to fulfill VA's duty to assist in the development of the claims. 2. Increased Rating Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Under 38 C.F.R. § 4.20, evaluation by analogy is permitted where the rating schedule does not provide a specific diagnostic code to rate the disability. 38 C.F.R. § 4.20. VA must specifically consider whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 8207, paralysis to the seventh (facial) cranial nerve, 10 percent rating is warranted for incomplete, moderate paralysis of the seventh (facial) cranial nerve. A 20 percent rating is warranted for incomplete, severe paralysis of the seventh (facial) cranial nerve. A 30 percent rating is warranted for complete paralysis of the seventh (facial) cranial nerve. 38 C.F.R. § 4.124a (2017). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Analysis A brief historical overview of the claim reflects that the Veteran's service-connected scar of the right side of his neck is rated under Diagnostic Code 7800, disfigurement of the head, face, or neck; Diagnostic Code 7804, painful scar; and Diagnostic Code 8207, paralysis of the seventh (facial) cranial nerve. A 30 percent disability rating is assigned to the Veteran's scar of the right side of his neck under Diagnostic Code 7800 effective November 6, 2012 and a 10 percent rating was assigned prior to November 6, 2012. A separate 10 percent evaluation is assigned under Diagnostic Code 7804 to the service-connected right neck scar for a painful scar. These issues were adjudicated in the March 2015 Board decision. A noncompensable evaluation is currently assigned for nerve dysfunction associated with the scar on the right neck under Diagnostic Code 8207 and this issue is currently before the Board for appellate review. In December 2008, the Veteran filed a claim for a higher rating for the scar on the right side of the neck. According to the Veteran, his disability had worsened, and he was experienced spasms on the side of his neck which pulls his mouth down and causes drooling. He stated that this occurred two or three times a week. He indicated that the scar was numb. See the Board Hearing Transcript, dated in July 2011, pages 3 to 9. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected nerve dysfunction due to the scar on the right neck for the entire appeal period. The Board finds that the weight of the competent and credible evidence shows that for the time period of the appeal, the service-connected nerve dysfunction associated with the scar on the right neck under Diagnostic Code 8207 is productive of mild incomplete paralysis, and not at least moderate incomplete paralysis. As noted above, under Diagnostic Code 8207, a 10 percent rating is warranted for incomplete, moderate paralysis of the seventh (facial) cranial nerve. 38 C.F.R. § 4.124a. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). The medical evidence includes a VA neurological disorders examination report, dated in March 2016. The VA examination report indicates that the cranial nerve examination was normal. It was noted that the Veteran reported numbness of the right corner of his mouth, associated with drooling, occurs on some occasions. The VA examiner stated that there was no evidence of cranial nerve condition and the Veteran's condition was quiescent. The VA examiner indicated that there were symptoms attributable to a cranial nerve condition affecting cranial nerves V to XII. There were findings of mild numbness on the right side of the mouth and throat and a mild increase in salivation. The VA examiner stated that the Veteran also had pain and a pulling sensation down the right side of the neck that occurs on some occasions. Sensory and muscle strength of the cranial nerves were normal. The Veteran underwent a VA examination in February 2009. He asserted that his scar caused spasms in his neck and limited his ability to move his neck and shoulder. He stated that during spasms, he was unable to chew or have full use of right shoulder, and it was very uncomfortable sensation and he could not predict onset of these spasms. Upon examination, his scar was 11 centimeters by 0.8 centimeters. He did not have tenderness, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, abnormal texture, or limitation of motion. In September 2009, the Veteran underwent a second VA examination with the same examiner. He reported pain, skin breakdown, tenderness, and spasm on the right side of his face; because of surgical scar neck spasm, the Veteran required the use of Tramadol and Lortab to relieve discomfort. Upon examination, his scar was not painful and there was no skin breakdown. The examiner found that the scar did not cause limitation of motion or limitation of function. It was not inflexible. Range of motion of the neck were normal. The examiner stated that the Veteran's concentration was limited during pain flares and that it made him feel uncomfortable and self-conscious. The Veteran underwent a third VA examination on November 6, 2012 with a different examiner. The November 2012 VA examiner noted that the Veteran had a tumor removed from his neck in 1972. The VA examiner stated that the Veteran had a "...large visible scar which starts in front of his right ear, runs down under the ear and up behind the ear, about half way, and then swings down the side of his neck in a long crescent." The examiner noted that the scar was well-healed but visible. The examiner also noted that the scar was stable and did not cause "skin problems" such as sloughing of the skin and traction deformity. Upon examination, the Veteran had decreased sensation to monofilament testing on the right side of his neck on each side of his scar for several inches. He had "total anesthesia" to touch or point sensitivity on the scar itself. He had a normal right ear and ear canal. His scar was painful but not tender to palpation. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The VA examiner concluded that the scar did not result in limitation of function and did not impact the Veteran's ability to work. The VA examiner stated that the location of the scar and the right facial symptoms suggest the right facial nerve is involved with a peripheral neuropathy; because this started several years after the surgery it may be due to long term effects of surgical healing but also may be due to other unknown causes. The VA examiner indicated that the facial nerve is in the immediate area of the preauricular surgery site and as the condition is very sporadic and fleeting in its presentation, the nerve dysfunction would be considered mild. The Veteran underwent a fourth VA examination in September 2014. The examiner found that the scar was not painful. It was described as stable with no adherence to underlying tissue or missing underlying soft tissue. It did not have depressed or elevated texture. The November 2012 VA examiner found that the Veteran's neck and shoulder had limitation of motion, but specifically found that the scar did not cause limitation of function or impact the Veteran's ability to work. As noted above, at the July 2011 hearing, the Veteran testified that his scar was painful. He also asserted that he had muscle spasm in his neck that pulled the right side of his face such that he drooled occasionally. He stated that his scar became dry in winter and that it was sensitive to cold. The Board finds that his testimony is competent and credible. At his February 2017 hearing, he reported intermittent numbness, a tendency to want to drool, and neck spasms. The Board finds that the Veteran's nerve dysfunction due to the scar on the right neck is not shown to have been manifested by moderate incomplete paralysis of the seventh (facial) cranial nerve such that a compensable rating is warranted. The weight of the evidence indicates that the Veteran's nerve dysfunction is manifested by mild numbness, a mild increase in salivation, decreased sensation to monofilament testing on the right side of his neck on each side of his scar for several inches, and "total anesthesia" to touch or point sensitivity on the scar which did not result in limitation of function and did not impact the Veteran's ability to work. Functionally, a moderate or more severe level of incomplete paralysis is simply not shown by the medical or lay evidence. There are no findings of moderate or severe symptoms or moderate or severe incomplete paralysis or complete paralysis. As there is no evidence of moderate or severe incomplete paralysis of the seventh cranial nerve, and no allegation or evidence of complete paralysis of the seventh cranial nerve, the Board finds that a compensable disability rating under Diagnostic Code 8207 is not warranted. The Board has also considered whether a higher or separate rating is warranted under any other diagnostic code, but has found none. Accordingly, as an increased compensable disability rating is not warranted under Diagnostic Code 8207 or any other code, the Veteran's claim must be denied. The claim for TDIU prior to May 13, 2014 is addressed in the remand below. ORDER Entitlement to a separate compensable disability rating for nerve dysfunction due to the scar on the right neck is denied. REMAND With regard to the TDIU issue, when this claim was first adjudicated by the RO in May 2015 and May 2016, the Veteran did not meet the combined rating requirements under 38 C.F.R. § 4.16 (a) for consideration of a TDIU. See the May 2015 rating decision and May 2016 supplemental statement of the case. Prior to November 6, 2012, the Veteran had a combined rating of 10 percent. From November 6, 2012 to May 12, 2014, the Veteran had a combined rating of 40 percent. From May 13, 2014 to June 9, 2014, the Veteran had a combined rating of 80 percent and from June 10, 2014, the Veteran has a combined rating of 90 percent. See the March 2017 rating decision. A July 2017 rating decision granted entitlement to TDIU from May 13, 2014. The Board finds that the Veteran's claim of entitlement to TDIU prior to May 13, 2014 is inextricably intertwined with the claim for service connection for a back disability that was remanded to the AOJ in a separate Board decision. Therefore, the adjudication of the TDIU prior to May 13, 2014 claim must be deferred pending resolution of the service connection claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the case is REMANDED for the following action: Readjudicate entitlement to TDIU from December 25, 2008 to May 12, 2014 with consideration of all evidence of record. If any benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his counsel, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). THOMAS H. O'SHAY KELLI A. KORDICH Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ K. PARAKKAL Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs