Citation Nr: 18146331 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 18-38 288 DATE: November 1, 2018 ORDER An initial disability rating of 10 percent, but no higher, for paresthesia of the tongue is granted. FINDING OF FACT The Veteran’s parasthesia of the tongue is manifested by moderate, incomplete paralysis. It is not manifested by complete paralysis or severe, incomplete paralysis. CONCLUSION OF LAW The criteria for an initial disability rating of 10 percent, but no higher, for parasthesia of the tongue have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8212 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to October 1992. The Veteran appeals a February 2018 rating decision by the Agency of Original Jurisdiction (AOJ) assigning an initial, non-compensable disability rating for parasthesia of the tongue. When, as here, 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, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran’s service-connected parasthesia of the tongue is currently evaluated under Diagnostic Code 8412. As the Veteran’s symptoms involve tongue numbness, Diagnostic Code 8412 caps the Veteran at a maximum equal to moderate incomplete paralysis, and the Board finds Diagnostic Code 8212 appropriate in this case. The Board notes that the Veteran’s non-compensable rating under Diagnostic Code 8412 has been in effect since October 2017. Hence, the rating is not protected, and there is no reduction in rating or severance of service connection from a change in the diagnostic code because of the Board’s action. Cf. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). In Murray, the Court of Appeals for Veterans Claims (Court) found that a change in diagnostic code for a protected disability rating that was in effect for 20 years or more could constitute an impermissible rating reduction under 38 C.F.R. § 3.951(b). 24 Vet. App. at 428. In Read, the Federal Circuit found service connection was not severed, as contemplated by 38 C.F.R. § 3.957 that protects service connection in effect for 10 years or more, simply because a diagnostic code associated with a disability was corrected to more accurately determine the benefit to which a veteran may be entitled. 651 F.3d at 1302. As the Veteran’s rating under Diagnostic Code 8412 has been in effect for less than two years and is not protected, the Board is not precluded from changing it to 8212. Under Diagnostic Code 8212, moderate incomplete paralysis of the hypoglossal nerve warrants a 10 percent disability rating, severe incomplete paralysis warrants a 30 percent rating, and complete paralysis warrants a 50 percent disability rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8212. Importantly, the Note under that Diagnostic Code states that paralysis depends on loss of motor function of tongue. Descriptive words such as “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 for “equitable and just decisions.” 38 C.F.R. § 4.6. Based on the evidence, the Board finds that the Veteran is entitled to an initial disability rating of 10 percent throughout the appellate period for his parasthesia of the tongue symptoms, as there is no indication of complete or severe, incomplete paralysis. In January 2018, the Veteran complained of tongue numbness that caused him to speak slower and take care while eating so he does not bite his tongue. See January 2018 VA examination report. The Board finds that such limitations are moderate because he also denied abnormal sensations like pain or tingling. Id. Importantly, he reported normal feeling in the cheek and lip on the right side. Given the consistent description of symptoms throughout the appellate period, the Board finds that the Veteran’s parasthesia of the tongue more closely approximates the criteria contemplated for moderate incomplete paralysis. Importantly, the record does not show, and the Veteran does not argue, that he has complete paralysis of his tongue. Thus, the Board finds that the criteria for an initial disability rating of 10 percent, but no higher, throughout the appellate period for parasthesia of the tongue are met. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel