Citation Nr: 1756865 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-23 865A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a compensable disability rating for calculus of the right sublingual gland. 2. Entitlement to an initial rating in excess of 10 percent for anatomical loss or injury of the mouth, lips, or tongue. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1962 to May 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In November 2013, the Veteran testified at a videoconference hearing before the Board. A copy of the hearing transcript is of record and has been reviewed. During the period of the appeal, the RO granted service connection for several disabilities associated with the Veteran's service-connected calculus of the right sublingual gland. In an April 2015 rating decision, service connection was granted for a right neck scar, right adherent scar of the neck, and anatomical loss of injury of the mouth, lips, or tongue. A June 2015 rating decision granted a separate evaluation for paralysis of the twelfth (hypoglossal) cranial nerve. In a December 2015 rating decision, the rating for residual scar, neck and mouth post-operative calculus right submandibular gland (previously rated as scar neck) was continued. This case was previously before the Board in June 2014, September 2015, and March 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's service-connected calculus of the right sublingual gland has not been manifested by disabling symptomatology other than that already compensated by his service-connected anatomical loss or injury of the mouth, lips, or tongue; residual scar, neck and mouth post-operative calculus right submandibular gland; painful or unstable right neck scar; and paralysis of the twelfth (hypoglossal) cranial nerve, right side. 2. For the period prior to September 13, 2017, the Veteran's anatomical loss or injury of the mouth, lips, or tongue was manifested by decreased inter-incisal range of motion of the mandible to 32 mm. 3. For the period beginning September 13, 2017, the Veteran's anatomical loss or injury of the mouth, lips, or tongue was manifested by decreased inter-incisal range of motion of the mandible to 20 mm. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for calculus of the right sublingual gland have not been met. 38 U.S.C.§§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.21, 4.114, Diagnostic Code 7344 (2017). 2. For the period prior to September 13, 2017, the criteria for a rating in excess of 10 percent for anatomical loss or injury of the mouth, lips, or tongue are not met. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.150, Diagnostic Code 9905. 3. For the period beginning September 13, 2017, the criteria for a 30 percent rating, but not higher, for anatomical loss or injury of the mouth, lips, or tongue are met. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.150, Diagnostic Code 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for calculus of the right sublingual gland was granted in a November 1973 rating decision. An initial noncompensable evaluation was assigned effective October 10, 1973. The March 2011 rating decision on appeal continued the noncompensable rating. The Veteran contends that a compensable rating is warranted for calculus of the right sublingual gland because he has scars and symptoms of sleep apnea, dry mouth, eye pain, sore throat, ear pain, and difficulty speaking and singing. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. "Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the veteran's disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Diagnostic code 7344 provides that benign neoplasms, exclusive of skin growths, are to be evaluated under an appropriate DC, depending on the predominant disability or the specific residuals after treatment. In this vein, the Veteran has been service connected during the appeals period for anatomical loss or injury of the mouth, lips, or tongue, rated 10 percent disabling; residual scar, neck and mouth post-operative calculus right submandibular gland, rated 10 percent disabling; painful or unstable right neck scar, rated 10 percent disabling; and paralysis of the twelfth (hypoglossal) cranial nerve, right side, rated 10 percent disabling. All are associated with the calculus of the right sublingual gland and are effective November 8, 2010. For the anatomical loss or injury of the mouth, lips or tongue, the agency of original jurisdiction (AOJ) rated this residual under DC 9900-9905. Hyphenated DCs are used when a rating under one DC determines its rating based on a residual condition, with the number following the hyphen representing the residual. 38 C.F.R. § 4.27. Diagnostic code 9900 is used to rate chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. The Rating Schedule directs that such conditions should be rated under DC 5000 (chronic osteomyelitis). The Board notes that the record does not indicate the Veteran has osteomyelitis or osteoradionecrosis of the maxilla or mandible, nor does the Veteran allege that he has such a condition. Moreover, the record does not indicate loss, nonunion, or malunion of the mandible (DCs 9901 through 9904); loss of the ramus (DC 9906 and 9907); loss of the condyloid process (DC 9908 and 9909); loss of the hard palate (DC 9911 and 9912); loss of teeth due to loss of substance of body of maxilla or mandible (DC 9913); or loss, nonunion, or malunion of the maxilla (DCs 9914 through 9916). For this reason, the Board finds that DC 9905 (limited motion of temporomandibular articulation) is the most appropriate DC and should be the assigned DC. The Board may reassign a DC where the rated disability and the rated manifestations are the same. See Read v. Shinseki, 651 F.3d 1296, 1301-02 (Fed.Cir. 2011) (VA did not sever service connection where specific sites of disability was identified for the first time, the disability was not tied to a particular muscle group but to Veteran's inability to perform certain acts, and the determination that his wound was incurred in connection with military service was not changed). This reassignment does not result in an impermissible severance or rating reduction because it reflects a more accurate diagnosis of the Veteran's condition and uses the same rating criteria as the prior rating, since that rating rated the Veteran's anatomical loss or injury of the mouth, lips or tongue as a residual, hyphenated DC using DC 9905. Under DC 9905, for limited motion of temporomandibular articulation, a 10 percent rating is warranted when the range of lateral excursion is limited from 0 to 4 millimeters (mm) or the inter-incisal range is limited to 31 to 40 mm; a 20 percent rating is applicable when the inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is for contemplation when the inter-incisal range is limited to 11 to 20 mm; and a 40 percent rating is assigned when the range is limited to 0 to 10 mm. 38 C.F.R. § 4.150, DC 9905. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905, Note. An August 2014 VA examination noted that the Veteran had decreased inter-incisal range of motion of the mandible to 32 mm. This corresponds to a 10 percent rating for this period. A September 2017 private dental consultation stated that the Veteran had a "limited opening" with a maximum range of "approximately 20 mm." Accordingly, the Board determines that an increased rating is warranted based on the results of the private dental consultation, which corresponds to a 30 percent evaluation. A higher rating is not warranted, however, as the range of motion is greater than the 0 to 10 mm range required for a 40 percent rating. For the next residuals of calculus of the right sublingual gland, the Board finds that the current ratings for residual scar, neck and mouth post-operative calculus right submandibular gland, and painful or unstable right neck scar - both rated 10 percent disabling - are appropriate. The residual scar, neck and mouth post-operative calculus right submandibular gland, is rated under DC 7800. Under DC 7800, a 10 percent evaluation is contemplated when there is one characteristic of disfigurement. A 30 percent evaluation is assigned when there is 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, when there are two or three characteristics of disfigurement. A 50 percent evaluation is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips; or, when there are four or five characteristics of disfigurement. An 80 percent evaluation is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or, when there are six or more characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. There are eight characteristics of disfigurement for purposes of evaluation under 38 C.F.R.§ 4.118, as follows: Scar 5 or more inches (in.) (13 or more cm.) in length; scar at least one-quarter in. (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square (sq.) in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding six sq. in. (39 sq. cm.); and, skin indurated and inflexible in an area exceeding six sq. in. (39 sq. cm.). Id. at Note I. The residual scar, neck and mouth post-operative calculus right submandibular gland, is appropriately rated 10 percent because it demonstrated one characteristic of disfigurement. VA examinations such as the March 2013 VA examination noted two scars associated with the Veteran's service-connected calculus of the right submandibular gland: a 4 cm scar on his right neck and a 2 cm scar in the floor of his mouth. A December 2010 VA examination noted that the right sublingual scar was nontender. An August 2014 VA examination noted a painful, stable scar on the Veteran's right neck. In November 2015, a VA examination reported that the right neck scar depressed on palpation and was hypopigmented. The scar was recorded as 4.5 x 0.4 cm, however, which falls short of the 39 sq. cm necessary to qualify as a characteristic of disfigurement; thus, only the skin depressed on palpation serves as a characteristic of disfigurement, and a 10 percent rating is appropriate. The second rating for scars - painful or unstable right neck scar - is rated under DC 7804. This DC provides that one or two scars that are unstable or painful are rated 10 percent disabling. Three or more scars that are unstable or painful are rated 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118. As documented above, VA examinations such at the March 2013 VA examination noted two scars associated with the Veteran's service-connected calculus of the right submandibular gland: a 4 cm scar on his right neck and a 2 cm scar in the floor of his mouth. The December 2010 VA examination noted that the right sublingual scar was nontender. The August 2014 VA examination noted a painful, stable scar on the Veteran's right neck. Because the record demonstrates one scar that is unstable or painful, a 10 percent rating is appropriate based on the painful right neck scar. As to the final service-connected residual of calculus of the right sublingual gland - paralysis of the twelfth (hypoglossal) cranial nerve, right side - the Board finds that the current 10 percent rating is appropriate. This condition is rated under DC 8212, for incomplete paralysis of the twelfth cranial nerve. Under DC 8212, a 10 percent rating is warranted for moderate incomplete paralysis of the twelfth cranial nerve; a 30 percent rating is warranted for severe incomplete paralysis, and a 50 percent rating for complete paralysis. 38 C.F.R. § 4.124a, DC 8212. The Board finds a rating of 10 percent, which corresponds to an incomplete, moderate paralysis of the hypoglossal nerve, is appropriate. An August 2014 VA examination noted reduced function of the right hypoglossal nerve, although it found no speech impairment caused by any tongue condition. The Veteran reported at a June 2015 VA examination that he sometimes bit his tongue while chewing, sometimes swallowed harder than he should, and had no problems with speaking. A June 2017 VA medical opinion noted that the Veteran's reported difficulty speaking and singing "could possibly" be related to his calculus of the right sublingual gland and subsequent surgery, due to hypoglossal nerve weakness and decreased tongue mobility. A September 2017 private dentist recorded the Veteran's concern of "occasional difficulty speaking or singing as well as tongue biting due to hypoglossal nerve damage" but found no lesions on the tongue or buccal mucosa consistent with chronic biting. The September 2017 private dentist also noted that the Veteran's tongue did not deviate to either side when asked to stick out his tongue, which is a "tell-tale sign of nerve injury." Because the evidence notes some reduced function of the hypoglossal nerve as well as reports from the Veteran regarding occasional difficulty chewing, swallowing, speaking, and singing, the Board finds that a classification of moderate incomplete paralysis is warranted for the Veteran's condition. The Board finds a higher rating for severe incomplete paralysis is not warranted as the medical evidence found no speech impairment and no physical manifestations of tongue and cheek biting or deviation of the tongue to either side. Next, the Board will address residuals asserted by the Veteran that are not associated with the residuals discussed above that are service connected. These residuals include sleep apnea, dry mouth, eye pain, sore throat, and ear pain. Initially, the Board notes that the Veteran has submitted lay statements from himself and others that document his symptoms. These individuals are competent to report such symptoms and observations because this requires only personal knowledge through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). These statements are also credible. To the extent these statements attempt to determine the causation of the Veteran's conditions, however, such a determination falls outside the realm of common knowledge of a lay person, as it deals with the functioning and effects of glands and gland removal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The record does not demonstrate the medical credentials of the lay statement providers to offer such opinions. The Veteran and lay statements reported difficulty sleeping and sleep apnea, which the Veteran linked to his service-connected calculus of the right sublingual gland. For sleep apnea, January 2011 and March 2013 VA examinations found the condition was not related to the Veteran's calculus of the right sublingual gland. The January 2011 VA examination attributed the sleep apnea instead to the Veteran's obesity; the March 2013 VA examination cited professional experience and lack of support in the medical literature in its determination that the service-connected disability had not caused sleep apnea. Thus, the Board finds sleep apnea is not a residual of his calculus of the right sublingual gland. As to the Veteran's reported dry mouth, there is conflicting medical evidence. A January 2015 VA examination addendum found no evidence that the removal of a single salivary gland resulted in dry mouth. The addendum noted that the Veteran's salivary flow was normal. In contrast, a September 2017 private dental record stated "[i]t would not be unlikely" for the Veteran to experience occasional dry mouth after the removal of a salivary gland. Like the VA examination addendum, however, the private dental record noted that the Veteran's soft tissues "did not appear overly dry at this time." The Board gives greater weight to the January 2015 VA examination addendum, which provided a more certain finding than the private dentist's "not unlikely" determination. The Board notes that the finding was also supported by the private dental record, which reported the tissues were not "overly dry." Accordingly, the Board finds dry mouth is not a residual of the Veteran's calculus of the right sublingual gland. The lay statements also noted pain in and watering of the Veteran's eyes. This was documented in a December 2010 private medical note. The June 2017 VA medical opinion, however, cited professional experience as well as a literature search in its determination that eye pain was not related to the excision of the Veteran's calculus of the right sublingual gland. The medical opinion also cited to the distance between the eye and the submandibular gland to support its opinion. Therefore, the Board concludes that the Veteran's eye pain and watering is not a residual of the Veteran's calculus of the right sublingual gland. Lay statements further document a long history of sore throats, which was also documented in a May 2011 VA medical center treatment note. In an October 2012 letters, a private physician stated that "It is possible that [the Veteran's frequent recurring sore throats] are as likely as not related to the 1962" calculus of the right sublingual gland surgery. Similarly, a November 2013 letter from the same private physician wrote that "It is possible that he has recurring sore throats related to the surgery in 1962. It is possible that his symptoms are as likely as not related to the 1962 procedure." These letters did not provide a rationale for this determination and only suggested a "possible" relationship between the sore throats and service. In contrast, a January 2015 VA examination addendum found it less likely than not that the Veteran's recurring sore throats were related to his right sublingual gland calculus or surgery. The VA examination addendum relied on the normal salivary flow (and lack of resulting dry mouth) and cited other factors, such as sinus disease, reflux, chronic mouth breathing, snoring, and poor oral hygiene, as more likely causes. This was corroborated by the June 2017 VA medical opinion, which cited professional experience and a literature search to support its determination that sore throats and frequent viral infections were unrelated to the Veteran's right sublingual gland surgery. The June 2017 VA medical opinion cited the fact that the submandibular gland is not part of the immune system and is not connected to the inner aspect of the pharynx where sore throats typically originate. Because they provided rationale and gave more than a "possible" link between the conditions, the Board gives greater weight to the VA examination addendum and medical opinion. Accordingly, the Board finds that the Veteran's recurring sore throats are not residuals of the Veteran's calculus of the right sublingual gland. With regard to the lay reports of ear pain linked to calculus of the right sublingual gland, the Board notes that the only medical evidence addressing ear pain - the June 2017 VA medical opinion - found no relation between the two. Citing professional experience and a literature search, the VA medical opinion determined there was not a link between ear pain and calculus of the right sublingual gland surgery. The VA medical opinion also referenced the distance between the ear and the gland to support its finding. Thus, the Board finds that the Veteran's ear pain is not a residual of the Veteran's calculus of the right sublingual gland. After review of the pertinent evidence of record, as discussed above, the Board finds the most probative evidence of record does not show Veteran's service-connected calculus of the right sublingual gland has been manifested by disabling symptomatology other than those compensated by his service-connected anatomical loss or injury of the mouth, lips, or tongue; residual scar, neck and mouth post-operative calculus right submandibular gland; painful or unstable right neck scar; and paralysis of the twelfth (hypoglossal) cranial nerve, right side. While an increased rating is warranted for the anatomical loss or injury of the mouth, lips, or tongue, the Board finds no additional residuals that warrant compensation. Finally, entitlement to a total disability based on individual unemployability (TDIU) is also an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record is negative for evidence that the Veteran is unemployable due to calculus of the right sublingual gland and its residuals. He is not currently employed but did work from the beginning of the appeals period until September 2015 (per the November 2015 VA examination) as a part-time stocker at a grocery store. He stopped due to a decrease in his financial burden and the strenuous nature of the job - prolonged standing, heavy lifting, and unloading. There is no evidence that the Veteran's calculus of the right sublingual gland interfered with his employment. A December 2010 VA examination found no significant effects on the Veteran's usual occupation but did note severe effects on (or prevention of) chores, shopping, exercise, sports, recreation, and traveling. The March 2016 VA examination and June 2017 VA medical opinion considered this opinion and found the condition would not affect chores, shopping, exercise, sports, recreation, and traveling, citing the lack of evidence of interference for the Veteran himself as well as the medical professional's experience and the available literature. Additionally, August 2014, June 2015, and November 2015 VA examinations found the Veteran's condition did not interfere with substantially gainful employment. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected calculus of the right sublingual gland and its residuals. ORDER Entitlement to a compensable rating for calculus of the right sublingual gland is denied. For the period prior to September 13, 2017, entitlement to a rating in excess of 10 percent for anatomical loss or injury of the mouth, lips, or tongue is denied. For the period beginning September 13, 2017, entitlement to a rating of 30 percent, but not higher, for anatomical loss or injury of the mouth, lips, or tongue is granted. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs