Citation Nr: 1805829	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-22 436	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a compensable disability rating for the service-connected residuals of a facial injury to the nose, to include scarring and sensory deficit (nerve injury).  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

L. B. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from July 1988 to August 1996.

This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  In that rating decision, the RO (also referred to as the Agency of Original Jurisdiction, or AOJ) granted service connection for residuals of a facial injury, to include a scar on the right side of the bridge of the nose.  The RO also granted service connection for loss of taste, loss of smell, hearing loss, tinnitus, all as secondary residuals of the facial injury, but found that the Veteran did not have residual nerve damage.  The Veteran disagreed with the RO's finding that the he did not have facial nerve damage and this appeal ensued.  According to the July 2013 Statement of the Case, the RO determined that the Veteran was appealing the initial noncompensable rating assigned for the service-connected facial injury to include the healed scar.  

In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.  According to the Veteran's July 2017 hearing transcript, he has consistently maintained that his facial injury residuals include nerve damage.  Accordingly, the issue has been recharacterized as reflected on the Cover Page of this decision to more accurately reflect the Veteran's contentions and to include all potential residuals of the service-connected facial injury.  See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009).  

In August 2017, the Veteran submitted private medical evidence in support of his claim, along with a waiver of initial review of that evidence by the AOJ.  

The issue(s) of service connection for headaches and a sinus condition, claimed as secondary to the service-connected facial injury have been raised by the record.  See July 2017 Hearing Transcript, pp. 7, 9-10.  As these issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).


FINDINGS OF FACT

1.  Since the effective date of service connection, the Veteran's facial injury has included loss of sensation in the infraorbital area of the right side of the face extending from the midline of the nose around to the outer canthus of the right eye, resulting in an overall disability picture that more nearly approximates moderate incomplete paralysis of the seventh cranial nerve.

2.  Since the effective date of service connection, the Veteran's service-connected facial injury has been manifested by a scar on the bridge of the nose with no characteristics of disfigurement and no other disabling effects such as pain and tenderness.  


CONCLUSIONS OF LAW

1.  Resolving all doubt in the Veteran's favor, the criteria for the assignment of a separate 10 percent rating, but not higher, for the service-connected facial injury on the basis of nerve damage, have been more nearly approximated for the entire period covered by this claim.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8207 (2017).

2.  The criteria for the assignment of a separate compensable rating for the service-connected facial injury on the basis of scarring have not been met or approximated at any time covered by this claim.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 

The underlying service connection claim was initially filed as a Fully Developed Claim (FDC).  The notice that accompanies the FDC form informs a veteran what evidence is required to substantiate a claim for service connection, a veteran's and VA's respective duties for obtaining evidence, and information on how VA assigns disability ratings in the event that service connection is established.  See VA Form 21-526EZ.

Regarding the claim for a higher initial disability rating for the service-connected facial injury residuals, this claim arose from a disagreement with the initial disability rating and/or effective date that was assigned following the grant of service connection.  Once service connection is granted, the claim is substantiated, and 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).

The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence.  The Veteran's service treatment records (STRs) have been associated with the record.  The Veteran was afforded a VA examination and he has provided private treatment records (with a waiver of AOJ consideration in the first instance) to supplement the findings from the VA examination.  The Veteran has provided testimony at a hearing, and this testimony is competent and credible with regard to his symptoms.  

In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

II.  Increased Ratings

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).

Each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2017).

Separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25 (2017); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  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.  See 38 C.F.R. § 4.14 (2017). 

In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

As noted above, the RO granted service connection for a facial injury, and assigned a noncompensable disability rating based on a non-disfiguring facial scar.  The RO also assigned separate disability ratings for associated conditions of tinnitus, hearing loss, loss of smell and loss of taste, as those conditions were found to be secondary to the facial injury.  The Veteran also maintains that he has right sided facial numbness as a residual of the service-connected facial injury.  

A VA examination in October 2012 did not address these contentions and found no evidence of muscle weakness or abnormal motor function.  The examiner checked the "no" box corresponding to whether the Veteran had any findings, signs, or symptoms attributable to any conditions affecting cranial nerves V, VII (facial nerve) and/or IX through XII.  However, it is not clear whether the examiner was aware of the Veteran's history of facial numbness because the examination report does not show that such a history was obtained from the Veteran.  

By contrast, the Veteran testified at his July 2017 videoconference hearing that as a result of the in-service facial injury, he cannot feel the inside of his nose and this numbness extends to the right side of his face around the scar area.  Hearing Transcript, p. 7.  The Veteran further described the effect of this numbness as not being able to feel when his nose is running, and that it drips out of his nose onto his face without his knowledge.  Hearing Transcript, p. 9.  The Veteran is competent to report a symptom such as numbness as this is a sensory symptom capable of lay observation.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The Veteran's statements in this regard are found credible.  

Moreover, the Veteran's reports of facial numbness are supported by objective medical findings.  According to an August 2017 private progress note, Dr. M found that the Veteran had loss of sensation in the infraorbital area of the right side of his face which was due to the in-service facial injury.  The examiner used a cotton ball to objectively test the area of numbness.  The testing correlated with loss of sensation over the infraorbital nerve on the right, and extended from the midline of the nose around to the outer canthus of the right eye.  

In light of the foregoing, the Board finds that the competent and credible evidence of record supports a finding that the Veteran has facial nerve damage as a result of the in-service injury, and a separate rating is warranted.  Impairment of the seventh cranial nerve (facial nerve) is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8207.  Under Diagnostic Code 8207, a 10 percent rating is for application when there is incomplete, moderate paralysis of the seventh (facial) cranial nerve, a 20 percent rating is for incomplete, severe paralysis; and a 30 percent evaluation for paralysis that is complete.  These ratings are to be assigned "[d]ependent upon [the] relative loss of innervations of facial muscles."  Diagnostic Code 8207.  (Where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 (2017).)  

The Board notes that words such as "moderate" and "severe" are not defined in the VA Rating Schedule.  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.  Although the words "moderate" and "severe" are not defined in VA regulations, "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc." and "severe" is defined as "extremely intense."  See Webster's New World Dictionary, Third College Edition (1988), pgs. 1038, 871, and 1071.  

In this case, the Veteran's neurological impairment is wholly sensory.  In other words, the 7th cranial nerve injury causes numbness, but does not affect the Veteran's smile or his speech, and no facial droop or weakness is shown.  Accordingly, the Board finds that the Veteran's nerve injury is neither complete nor severe.  

However, the Board finds that the overall disability picture more nearly approximates at least moderate incomplete paralysis of the seventh cranial nerve.  In this regard, the Veteran's area of numbness does not spread across the entire face, and does not result in any measurable disfigurement; however, the entire nose is completely numb such that the Veteran is unable to feel his nose run, which leads to a dripping nose.  Thus, there is functional impairment as a result of the numbness, which the Board finds warrants a compensable rating.  

Accordingly, and in resolving any doubt in the Veteran's favor, the Board finds that the criteria for the assignment of a 10 percent rating for moderate incomplete paralysis of the 7th (facial) cranial nerve is warranted.  The assignment of this 10 percent rating is warranted for the entire period covered by this claim as there are no distinct time periods when the condition has been shown to be more or less disabling than currently rated.  

Also, for the reasons set forth above, the criteria for the assignment of a higher rating is not warranted as severe incomplete paralysis has never been demonstrated.  

Likewise, a compensable rating for the service-connected scar on the bridge of the nose is not warranted.  

The service-connected scar is rated under 38 C.F.R. § 4.118, Diagnostic Code 7800, which provides disability ratings for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head face or neck. 

Disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, should be separately rated under the appropriate diagnostic codes, applying 38 C.F.R. § 4.25 to combine the ratings with the rating assigned under Diagnostic Code 7800.  38 C.F.R. § 4.118, Diagnostic Code 7800, Note (4) (2017).

The particular criteria set out under Diagnostic Code 7800 provide for a 10 percent rating with one characteristic of disfigurement.  A 30 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement.  A 50 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features or; with four or five characteristics of disfigurement.  An 80 percent rating is assigned for visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features, ears, cheeks, or; with six or more characteristics of disfigurement.  Id. 

The 8 characteristics of disfigurement are (1) a scar 5 or more inches in length; (2) a scar at least one-quarter inch wide at the widest part; (3) surface contour of a scar elevated or depressed on palpation; (4) a scar adherent to the underlying tissue; (5) skin is hypo- or hyper pigmented in an area exceeding six square inches; (6) skin texture is abnormal in an area exceeding six square inches; (7) the underlying soft tissue is missing in an area exceeding six square inches; and (8) the skin is indurated and inflexible in an area exceeding six square inches.  Id., Note (1).

According to the VA examination in October 2012, the Veteran's facial scar was not manifested by any of the above characteristics of disfigurement and did not result in gross distortion or asymmetry of two features or paired sets of features.  

Likewise, the evidence does not show, and the Veteran does not allege, that his scar is manifested by any disabling effects, including that his scar is tender and painful.  

There is no evidence to the contrary.  Accordingly, as the Veteran's scar is not manifested by any characteristics of disfigurement, or any other disabling effects, a compensable rating is not warranted.  

Finally, as the Veteran has never asserted that he is unemployable due to his service-connected facial injury residuals, a claim for individual unemployability is not raised by the record.  

	(CONTINUED ON NEXT PAGE)












ORDER

An initial 10 percent disability rating, but not higher, for the service-connected facial injury, on the basis of moderate incomplete paralysis of the 7th cranial (facial) nerve, is granted, subject to the law and regulations governing the payment of monetary benefits.  

An initial compensable disability rating for the service-connected facial injury, on the basis of a disfiguring facial scar, is denied.  



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs