Citation Nr: 1804324 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 09-20 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected trigeminal neuralgia, status post sinus surgery. 2. Entitlement to an initial evaluation in excess of 10 percent disabling for service-connected lumbosacral strain prior to September 7, 2012, and in excess of 20 percent disabling thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran served on active duty with the Air Force from August 1987 to October 1995, and from June 1996 to March 2008. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program, which, in pertinent part, granted service connection for neuralgia of the trigeminal nerve, status post surgery, rated at 10 percent disabling, and granted service connection for lumbosacral strain, rated at 10 percent disabling. The Veteran's claims file has since been transferred to the RO in St. Petersburg, Florida. As a preliminary matter, the Board acknowledges that, to date, the Veteran has not been afforded a hearing before the Board as to the issues on appeal. In this regard, the Board notes that, within a May 2009 substantive appeal, the Veteran requested a hearing at the RO before a member of the Board. However, in a statement received in May 2010, the Veteran withdrew his request for a hearing with the Board. Accordingly, the Board finds that the hearing request is withdrawn. 38 C.F.R. § 20.704(d) (2016). The Board remanded the appeal in July 2012 for a VA examination and opinion to determine the current severity of service-connected trigeminal neuralgia and lumbosacral strain. In a December 2012 rating decision, the Appeal Management Center (AMC) granted an increased evaluation for service-connected lumbosacral strain to 20 percent disabling, effective September 7, 2012. The Veteran continues to appeal for a higher rating. The Board finds that this was only a partial grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue of entitlement to an increased rating for service-connected lumbosacral strain for the entire rating period remains pending on appeal. In November 2014, the appeal was again before the Board and was remanded for substantial compliance with prior remand directives and for further record development. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Specifically, the Board remanded for the issuance of a statement of the case for the issue of entitlement to an increased rating for service-connected lumbosacral strain, and for a new VA examination to address current severity of service-connected trigeminal neuralgia. See 38 C F R § 19.31(c) (the AOJ will issue a supplemental statement of the case if, pursuant to a remand by the Board, it develops evidence) (2016). This was accomplished as to the claim for an increased rating for service-connected trigeminal neuralgia, and the Board finds that it may proceed with a decision on that issue at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Unfortunately, the Board finds that another remand is necessary prior to rendering a decision on the Veteran's claim of an increased rating for service-connected lumbosacral strain. 38 C.F.R. § 3.159(c)(4)(i) (2016); see Correia v. McDonald, 28 Vet. App. 158 (2016). The issue of entitlement to an increased evaluation for service-connected lumbosacral strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire rating period on appeal, the Veteran's service-connected trigeminal neuralgia most nearly approximates moderate incomplete paralysis of the fifth cranial nerve. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for service-connected trigeminal neuralgia, status post sinus surgery, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.124, 4.124a, Diagnostic Codes (DC) 8205, 8405 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Here, the RO issued preadjudicatory notice to the Veteran in February 2008 which met the VCAA notice requirements with respect to service connection for trigeminal neuralgia. Id. The Veteran has appealed the initial assigned rating for service-connected trigeminal neuralgia. Once service connection is granted and the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (2016) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Therefore, no further notice is needed under VCAA regarding this issue. VA has also made reasonable efforts to obtain relevant records and evidence needed to substantiate the claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). The information and evidence that has been associated with the claims file includes lay statements, private outpatient treatment records, Patrick Air Force Base outpatient treatment records and VA examinations. VA examinations were provided in February 2008, September 2012 and November 2016 in connection to the Veteran's claim for service connection and thereafter, initial increased rating claims for service-connected trigeminal neuralgia. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations to address the Veteran's claimed disability has been met. 38 C.F.R. § 3.159(c)(4) (2016). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board. . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board finds that the severity of the Veteran's trigeminal neuralgia has not changed in severity over the course of the appeal to warrant a staged rating. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2016). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C.A. § 1154(a) (West 2014); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2016). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Rating Law and Analysis for Trigeminal Neuralgia The Veteran's service-connected trigeminal neuralgia is rated under Diagnostic Code 8205 for paralysis of the fifth (trigeminal) cranial nerve. Diagnostic Code 8205 provides for a 10 percent rating for moderate incomplete paralysis of the fifth cranial nerve. A 20 percent rating is assigned for severe incomplete paralysis of the fifth cranial nerve. A 30 percent rating is assigned for complete paralysis of the fifth cranial nerve. 38 C.F.R. § 4.124a (2016). Diagnostic Code 8405, neuralgia of the fifth (trigeminal) cranial nerve, is rated under the same criteria. Id. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2016). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 4.2, 4.6 (2016). The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case" and the Board can choose the Diagnostic Code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. See 38 C.F.R. § 4.20 (2016) (providing for consideration of functions affected, anatomical localization, and symptomatology in assigning a diagnostic code). Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch Diagnostic Codes to reflect more accurately a veteran's current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). See also 38 C.F.R. § 4.27 (explaining the use of diagnostic code numbers, including use of diagnostic codes by analogy). In this case, the Veteran is service-connected for neuralgia of the left fifth cranial nerve. Throughout the appeal period, medical examiners have diagnosed the Veteran's neurological impairment as neuralgia, affecting the left fifth cranial nerve. As the Veteran's medical history and symptomatology are more analogous to a rating under Diagnostic Code 8405 for neuralgia of the fifth cranial nerve, the Board finds it appropriate to change the Diagnostic Code under which the Veteran is rated from Diagnostic Code 8205, paralysis, to Diagnostic Code 8405, neuralgia, for the entire initial rating period on appeal. 38 C.F.R. § 4.84a (2007); 38 C.F.R. §§ 4.20, 4.27, 4.79, 4.124a (2016). Accordingly, the Board will proceed to rate the service-connected neuralgia of the fifth cranial nerve under Diagnostic Code 8405 for the entire initial rating period from April 1, 2008. After review of all the lay and medical evidence of record, the Board finds that for the entire rating period on appeal, a rating in excess of 10 percent is not warranted for service-connected trigeminal neuralgia under Diagnostic Code 8405 as his disability picture does not more nearly approximate severe incomplete paralysis of the trigeminal nerve. Rather, his condition is best characterized as no more than moderate at worst. At a February 2008 VA examination, the Veteran was diagnosed as having neuralgia of trigeminal nerve. The VA examiner indicated that the neuralgia affected the Veteran's sinuses and in his teeth, which were aggravated by the vibrations during talking, which was crucial in the Veteran's work as an air traffic controller. A neurological evaluation revealed normal cranial nerve function on the left and right sides with no evidence of sensory loss. The VA examiner noted that the Veteran's neuralgia mildly affected his daily activities of chores, exercise, sports, and recreation. Patrick Air Force Base outpatient treatment records in March 2008 show the Veteran complained of sinus pain. Within a June 2008 notice of disagreement, the Veteran indicated that the pain caused by his neuralgia was the reason why he left the Air Force, as he could no longer constantly talk to pilots due to the sharp pain radiating from his septum to his upper left teeth. The Veteran stated that the pain can be so severe that at times it feels as though his teeth are being drilled into. In an April 2009 substantive appeal, the Veteran stated that his face and upper left teeth were in constant, severe pain. He indicated that the neurologist seen while in service advised him that the only treatment to relieve the pain would be to cut the nerve, which would result in paralysis of his face. Because of this pain, the Veteran stated that he can no longer perform the work of an air traffic controller as the work requires constant speaking, causing extreme pain. In a September 2012 VA examination report of the cranial nerves, the VA examiner noted moderate constant pain of the left midface and left side of mouth and throat, and severe intermittent pain of the left midface. Muscle testing and sensory examination of the fifth cranial nerve was normal. The VA examiner opined that the left trigeminal cranial nerve was not affected by incomplete paralysis and did not impact his ability to work. During a November 2016 VA examination for cranial nerve conditions, the Veteran reported a dull, aching pain to the left midface which was aggravated by talking. The Veteran reported that he was currently employed as a medical helicopter dispatcher, and had been for the past eight years, and stated that he would have a difficult time returning to air traffic control work due to his age and amount of talking required to perform his duties. Upon examination, the Veteran had moderate, constant pain to the left midface, moderate intermittent pain to the left midface, and moderate dull pain to the left lower face. Results from muscle strength testing and sensory examination of the trigeminal nerve were normal. The cranial nerve summary evaluation was that the Veteran's right cranial nerve was not affected and that he had moderate incomplete neuralgia on the left side. The VA examiner opined, based on the Veteran's reports of his symptoms, that the duties requiring persistent talking would be impeded by the Veteran's trigeminal neuralgia symptoms. Service connection for trigeminal neuralgia is rated as 10 percent disabling as of April 1, 2008, the day after the Veteran was discharged from active service. Upon review of the probative lay and medical evidence of record, the Board finds that the Veteran's trigeminal neuralgia is appropriately rated as 10 percent disabling given his condition is productive of no more than moderate incomplete paralysis of the fifth cranial nerve. All three VA examinations in February 2008, September 2012, and November 2016 (i.e., throughout the appellate period) largely show that the Veteran has normal sensation and muscle strength. Symptoms largely center around signs and symptoms of facial pain. The VA examinations of record performed in February 2008, September 2012, and November 2016 generally show moderate constant and moderate intermittent pain to the left midface, and moderate dull pain to the left lower face; however, it is acknowledged that the September 2012 VA examiner found severe intermittent pain of the left midface. In terms of functional impairment, the evidence establishes that during a February 2008 VA examination, the Veteran's symptoms were described as having a mild effect on his daily activities. The September 2012 VA examiner opined that the Veteran's symptoms did not impact his ability to work. A November 2016 VA examiner opined that occupational duties requiring persistent talking would be impeded by the reported neuralgia symptoms. However, it is notable that he was continuously employed during the pendency of the appeal and that upon retiring as an air traffic controller, he began working full-time as a medical helicopter dispatcher. Given the above, the Board finds that the Veteran's service-connected trigeminal neuralgia more nearly approximates a moderate incomplete paralysis of the fifth cranial nerve, warranting a 10 percent disability rating under Diagnostic Code 8405. The Board finds that the weight of the evidence demonstrates that service-connected trigeminal neuralgia does not more nearly approximate a disability comparable to severe incomplete paralysis of the fifth cranial nerve so as to warrant a higher 30 percent rating under Diagnostic Code 8405. While the Veteran reported severe pain to his teeth caused by his neuralgia, the Board finds probative the VA examinations of record which generally establish moderate constant or intermittent pain to the left midface and moderate dull pain to the left lower face. As such, the weight of the evidence weighs against a finding that service-connected trigeminal neuralgia equates to severe incomplete paralysis of the fifth cranial nerve. Based on the foregoing, the weight of the probative lay and medical evidence of record is against the appeal for a higher initial rating in excess of 10 percent for service-connected trigeminal neuralgia. For these reasons, the Board finds that a preponderance of the evidence is against the claim, and the doctrine of the benefit of the doubt is not for application. Other Considerations The Board considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, however, VA treatment records, VA examinations, and the Veteran's testimony do not indicate unemployability due to his trigeminal neuralgia. The Board acknowledges that the Veteran has asserted that the pain in his teeth becomes aggravated by talking, which interferes with his ability to persistently talk as required in his previous employment as an air traffic controller. However, there is no indication that his disability renders him unemployable, as the Veteran has maintained employment as medical helicopter dispatcher throughout the period of appeal. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to neuralgia. Accordingly, the Board does not find that such issue of TDIU has been raised on the record by the Veteran. 38 C.F.R. § 4.14(b) (2016). Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An increased rating in excess of 10 percent for service-connected trigeminal neuralgia, status post sinus surgery, is denied. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2016). Within a June 2017 appellate brief, the Veteran, through his representative, contended that his lumbosacral strain had worsened in severity since the previous VA examination in September 2012. Therefore, the Board finds that a remand is necessary for a VA examination to determine the current severity of service-connected lumbosacral strain. Additionally, subsequent to the VA examinations of record for the Veteran's lumbar spine, the Court decided Correia, holding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the February 2008 and September 2012 VA examination reports include only active range of motion findings and do not include range of motion findings for passive range of motion. They also do not specify whether the results are weight-bearing or non-weight bearing. Therefore, the Board finds that, on remand, the VA examiner must test for pain in both active and passive motion, as well as in weight-bearing and non weight-bearing of the lumbar spine. Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the case to an appropriate VA examiner(s) for an orthopedic examination to determine the current severity of the Veteran's service-connected lumbosacral strain. The record should be made available to the examiner for review. All indicated tests and studies should be performed. The examiner should specifically address the Veteran's functional loss, and loss of motion due to flare-ups of pain, fatigability, incoordination, pain on movement, or weakness. For all measured ranges of motion, the VA examiner should identify at what point pain begins. The VA examiner should, if feasible, estimate any additional loss of motion (in degrees) due to pain, flare-ups of pain, fatigability, incoordination, lack of endurance, or weakness. If it is not if feasible estimate the degree of any additional loss of motion due to pain, flare-ups of pain, fatigability, incoordination, lack of endurance, or weakness, the VA examiner must provide an opinion explaining why such loss motion could not could not feasibly be determined. The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 2. The AOJ must ensure that the required actions have been accomplished to the extent possible in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. 3. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs