Citation Nr: 18143289 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-04 872 DATE: October 18, 2018 ORDER A rating in excess of 10 percent for residuals, fracture, left zygoma with surgical reconstruction is denied. REMANDED An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and depression is remanded. FINDING OF FACT For all periods relevant to this appeal, the Veteran’s residuals, fracture, left zygoma with surgical reconstruction has been manifested by decreased sensation, pain, and numbness that are associated with moderate incomplete paralysis of the fifth (trigeminal) cranial nerve. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals, fracture, left zygoma with surgical reconstruction are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes (DCs) 6599-8405. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to September 1976. The Board notes that the Veteran testified before a Veterans Law Judge in a November 2015 hearing and such hearing transcript is associated with the claims file. However, the Veterans Law Judge is no longer employed by the Board. As such, the Veteran was notified in an August 2018 letter that he was entitled to another hearing before the Board. See 38 C.F.R. § 20.707 (2018). The Veteran has not indicated that he would like another hearing. As such, the Board may proceed on the appeal. This case was originally before the Board in December 2016, when several claims were adjudicated. The Veteran’s claim for an increased rating for residuals, fracture, left zygoma with surgical reconstruction and an additional service connection claim for an acquired psychiatric disability were remanded for further development. In May 2018, the RO granted service connection for PTSD and depression. Thus, this issue is no longer in appellate status. Additional development was completed with respect to the Veteran’s remaining increased rating claim. The RO issued a supplemental statement of the case in May 2018 and the appeal is once again before the Board. The Board notes that the Veteran has perfected an appeal with respect to the issues of (1) an increased rating for traumatic brain injury (2) an increased rating for maxillary sinusitis (3) an increased rating for headaches (4) service connection for periodontal disease, loss of teeth and (5) an effective date prior to May 20, 2017 for a 50 percent evaluation assigned to maxillary sinusitis. However, he has requested a Board hearing with respect to these particular issues. These issues will be addressed in a later decision following a Board hearing and will not be discussed in the decision below. Finally, the Board notes that the claim for an initial rating in excess of 50 percent for PTSD and depression has been included in the appeal pursuant to Manlincon v. West, 12 Vet. App. 238 (1998), and will be addressed in the remand below. Entitlement to a rating in excess of 10 percent for residuals, fracture, left zygoma with surgical reconstruction. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2018). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall 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 (2018). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected residuals, fracture, left zygoma with surgical reconstruction was initially granted in a December 1978 rating decision under Diagnostic Codes 6599-8407 (seventh cranial nerve- facial). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2018). The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2018). The Board noted in December 2016 that the evidence was unclear as to whether the Veteran’s service-connected disability involved his fifth (trigeminal) cranial nerve or his seventh (facial) cranial nerve. Another VA examination was requested to determine which diagnostic code most accurately accounts for the Veteran’s service-connected disability. Based on an additional examination, the RO has subsequently changed the diagnostic code to more accurately reflect the Veteran’s residuals, fracture, left zygoma with surgical reconstruction. The Veteran’s disability is now rated under 38 C.F.R. § 4.130, DCs 6599-8405 (fifth cranial nerve-trigeminal). The Board will as such rate the Veteran’s fifth cranial nerve (trigeminal) in the analysis below. DC 8405 provides the rating criteria specifically for disabilities due to injuries involving the fifth (trigeminal) cranial nerve. Under those criteria, a 10 percent disability rating is assigned where the evidence shows incomplete moderate paralysis of the trigeminal nerve. A 30 percent disability rating is appropriate for disabilities marked by incomplete severe paralysis of the trigeminal nerve. A 50 percent disability rating is warranted where the evidence shows that there has been complete paralysis of the trigeminal nerve. At a February 2013 VA examination, intermittent pain was noted in the Veteran’s left mid face. There was numbness also reported in the same area of his face. Muscle strength testing of his cranial nerve V was normal. A sensory examination reflected abnormal findings. The VA examiner noted that the Veteran had incomplete moderate paralysis of the cranial nerve V (trigeminal). At a December 2014 VA examination, the Veteran was diagnosed with a trigeminal nerve injury. The Veteran reported numbness in much of the left face, with occasional cramping of the left facial muscles lasting 4-5 minutes at a time. The Veteran also reported sweating of his left face when he eats something very sweet. The VA examiner noted paresthesias and/or dysesthesias and numbness of the left mid and lower face. Muscle strength testing was normal. The VA examiner noted moderate incomplete paralysis of the cranial nerve V (trigeminal). At a May 2017 VA examination, the Veteran was diagnosed with an injury to the trigeminal nerve and paresthesias. The VA examiner noted intermittent pain, paresthesias and/or dysesthesias and numbness of the Veteran’s upper face, eye and/or forehead and the mid face. Muscle strength testing was normal. A sensory exam revealed decreased findings in the upper left side face and forehead and left mid face. The VA examiner noted moderate incomplete paralysis of the cranial nerve V (trigeminal). In an August 2017 addendum opinion, the VA examiner noted that the Veteran’s cranial nerve condition does not impact his ability to work. The Board has additionally reviewed hundreds of pages of treatment records. The evidence shows that the Veteran’s service-connected trigeminal nerve disability has been manifested by incomplete moderate paralysis of the trigeminal nerve that has caused pain, numbness, and paresthesias involving the mid to upper left portions of the Veteran’s face. Each VA examiner has specifically found the Veteran’s trigeminal nerve disability to be moderate in severity. Overall, the Veteran’s symptomatology and disability picture correspond with the criteria for a 10 percent disability rating under DC 8405. The Veteran also submitted written statements discussing the severity of his service-connected disability. In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the 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. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact. Credibility and weight are a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report symptoms of his residuals, fracture, left zygoma with surgical reconstruction disability because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his residuals, fracture, left zygoma with surgical reconstruction disability when applied to appropriate diagnostic codes. Such competent evidence—concerning the nature and extent of the Veteran’s residuals, fracture, left zygoma with surgical reconstruction disability—has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports directly address the criteria under which the Veteran’s residuals, fracture, left zygoma with surgical reconstruction disability is rated. The Veteran is not entitled to a disability rating higher than 10 percent for his residuals, fracture, left zygoma with surgical reconstruction disability. To that extent, this appeal is denied. REASONS FOR REMAND Entitlement to an initial rating in excess of 50 percent for PTSD and depression is remanded. In a May 2018 rating decision, the Veteran was granted service connection for PTSD and depression with an evaluation of 50 percent effective September 11, 2012. In a July 2018 statement, the Veteran expressed disagreement with the rating assigned. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26 (2018). Thus, remand for issuance of a SOC on this issue is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matter is REMANDED for the following action: A statement of the case, containing all applicable laws and regulations, on the issue of entitlement to an initial rating in excess of 50 percent for PTSD and depression must be issued, and the Veteran must be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to this issue is perfected within the applicable time period should this issue be returned to the Board for appellate review. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel