Citation Nr: 18152803 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-35 139 DATE: November 27, 2018 ORDER Entitlement to an initial 30 percent rating for residuals of dental treatment with facial numbness and tingling under 38 U.S.C. § 1151 (hereinafter dental treatment) is granted. Entitlement to an initial 10 percent rating for chronic sinusitis secondary to the dental treatment claim is granted. Entitlement to an initial compensable rating for rhinitis secondary to the dental treatment claim is denied. Entitlement to an initial increased rating in excess of 10 percent for left pharyngeal rotation flap surgery to the maxilla secondary to the dental treatment claim is denied. Entitlement to an initial increased rating in excess of 10 percent for pharyngeal rotational flap surgery to the maxilla unstable scar secondary to the dental treatment claim is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s cranial nerve symptoms were productive of severe incomplete paralysis. 2. Throughout the entire period on appeal, the Veteran’s service-connected sinusitis has been manifested by three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. 3. Throughout the entire period on appeal, the Veteran’s allergic rhinitis did not cause greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. 4. The Veteran’s single scar is at least one-quarter inch wide at the widest part. The scar does not meet the other 7 characteristics of disfigurement. 5. The Veteran’s single scar is unstable. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for residuals of dental treatment with facial numbness and tingling under 38 U.S.C. § 1151 have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 6899-8205 (2017). 2. The criteria for an initial 10 percent rating for chronic sinusitis have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 6513 (2017). 3. The criteria for an initial compensable rating for rhinitis have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 6522 (2017). 4. The criteria for an initial increased rating in excess of 10 percent for left pharyngeal rotation flap surgery to the maxilla have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 7800. 5. The criteria for an initial increased rating in excess of 10 percent for pharyngeal rotational flap surgery to the maxilla unstable scar have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to November 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2013, March 2015 and May 2016 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). Duties to notify and assist As a preliminary matter, the Board has reviewed the electronic claims file and finds there exist no deficiencies in VA’s duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159/ (b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 1. Entitlement to an initial 30 percent rating for residuals of dental treatment with facial numbness and tingling under 38 U.S.C. § 1151 Initially, the Board notes the Veteran was granted compensation under 38 U.S.C. § 1151 for residuals of dental treatment with facial numbness and tingling and granted a 10 percent evaluation in a February 2013 rating decision with an effective date of January 23, 2003 (the date of claim). The Veteran subsequently filed a notice of disagreement with the rating assigned and indicated he is entitled to a higher rating than what is currently assigned. The Veteran’s claim is currently rated under Diagnostic Code 6899-8205. A hyphenated diagnostic code reflects a rating by analogy. 38 C.F.R. §§ 4.20 and 4.27. Paralysis of the 5th (trigeminal) cranial nerve is rated on the basis of the relative degree of sensory manifestations. A 10 percent rating is provided when paralysis is incomplete and moderate, a 30 percent rating when it is incomplete and severe, and a 50 percent rating when it is complete. 38 C.F.R. § 4.124a, Diagnostic Code 8205. Regulations provide that the term “incomplete paralysis” indicates impairment of function of a degree substantially less than the type pictured for complete paralysis given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When involvement is wholly sensory, the rating should be for the mild, or, at most, moderate degree. 38 C.F.R. § 4.124a, Note. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that assigned for moderate incomplete paralysis. 38 C.F.R. § 4.123. Here, the Veteran underwent VA examination in January 2016. The examiner noted that the cranial nerve V (trigeminal) was affected by the Veteran’s condition. The Veteran’s symptoms were noted as follows: he had moderate intermittent pain, dull mild pain, severe paresthesias and/or dysesthesias, and severe numbness all to the left side of his mouth and throat and mild difficulty swallowing. The examiner further noted the Veteran had normal muscle strength in the cranial nerve V muscle group, and normal sensation to light touch for facial sensation. The examiner indicated in the cranial nerve summary evaluation that the Veteran suffered from incomplete, severe paralysis affecting the cranial nerve V (trigeminal) on the left side. Based on the foregoing, the Board finds the Veteran’s symptoms more nearly approximate to the 30 percent evaluation as the January 2016 examiner clearly indicates that the Veteran suffers from incomplete severe paralysis. As such, the Board finds the Veteran’s symptoms more nearly approximates to a 30 percent rating. 2. Entitlement to an initial compensable rating for chronic sinusitis The Veteran was granted compensation for chronic sinusitis under 38 U.S.C. § 1151 in a March 2015 rating decision and assigned a noncompensable rating effective April 11, 2014 (the date of claim). The Veteran’s sinusitis is evaluated under the criteria set forth in 38 C.F.R. § 4.97, Diagnostic Code 6513. Pursuant to Diagnostic Code 6513, a noncompensable disability rating is warranted for sinusitis detected by x-ray only. A 10 percent disability rating is warranted for one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is warranted for three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513, Note. Here, medical treatment records from 2014 note the Veteran’s continued treatment for his sinuses and indicate that the Veteran suffered at least 4 sinus infections per year that needed oral antibiotics to resolve. The Veteran was afforded VA examinations in March 2015 and January 2016. In March 2015, the examiner noted that the Veteran was diagnosed with sinusitis is 2014 that affected the ethmoid and maxillary sinuses. The examiner noted the Veteran had episodes of sinusitis with symptoms of pain and tenderness of the affected sinus and purulent discharge. The examiner noted the Veteran did not have any incapacitating or non-incapacitating episodes. The examiner noted the Veteran had sinus surgery but failed to indicate whether the Veteran had chronic osteomyelitis following the surgery. The Veteran was no noted as having repeated sinus-related surgical procedures, or scars related to the sinuses. In January 2016, the examiner noted the Veteran’s chronic sinusitis affected the maxillary sinus and the examiner indicated the Veteran had episodes of sinusitis. It was also noted that the Veteran had constant left sided rhinorrhea that was usually clear but occasionally purulent. Medication was noted to have helped control infection incidences over the past year. The examiner noted the Veteran had one non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The Veteran did not suffer from any incapacitating episodes. The examiner noted the Veteran had sinus surgery in 2003 but did not develop chronic osteomyelitis following surgery. After review of all the pertinent medical evidence of record the Board finds the evidence weighs in favor of finding that the Veteran’s sinusitis is manifested by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting, thus warranting a 10 percent disability rating under Diagnostic Code 6513. The Board finds no reason to disregard the Veteran’s assertions noted in his medical treatment records that he suffered from at least four non-incapacitating episodes of sinusitis a year. Additionally, VA examination has noted that these episodes are characterized by headaches, pain and purulent discharge or crusting. However, neither the medical or lay evidence of record establishes that the Veteran suffers from more than six non-incapacitating episodes characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. As such, a rating higher than 10 percent is not warranted. Accordingly, the Board finds that a rating of 10 percent, but not higher, is warranted under Diagnostic Code 6513. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial compensable rating for rhinitis The Board notes the Veteran was granted a non-compensable rating for rhinitis in and May 2016 rating decision associated with his dental treatment claim. The Veteran was assigned an effective date of January 6, 2016 based on the disability being raised by the medical evidence received at that time. In this case, the Veteran’s allergic rhinitis has been rated under 38 C.F.R. § 4.97, Diagnostic Code 6522, allergic or vasomotor rhinitis. Under Diagnostic Code 6522, allergic rhinitis warrants a 10 percent rating when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A maximum rating of 30 percent is warranted when polyps are present. 38 C.F.R. § 4.97, Diagnostic Code 6522. A polyp is “an abnormal protruding growth from a mucous membrane.” Dorland’s Illustrated Medical Dictionary, 1514 (31st ed. 2007). Unfortunately, the evidence does not show that the Veteran had greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. Here, the Veteran was afforded a VA examination in January 2016. The examiner noted the Veteran had allergic rhinitis that did not produce greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. There was no permanent hypertrophy of the nasal turbinates, there was no nasal polyps or granulomatous conditions. There was no larynx or pharynx conditions, no deviated nasal septum, and no tumors or neoplasms. Based on the foregoing, the Board finds the Veteran’s rhinitis symptoms do not more nearly approximate to a compensable rating under the applicable diagnostic codes as the evidence does not show he has greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side without polyps. Thus, the claim is denied. 4. Entitlement to an initial increased rating in excess of 10 percent for left pharyngeal rotation flap surgery to the maxilla scar and unstable scar At the outset, the Board notes the Veteran was assigned two separate 10 percent ratings for his scar associated with his 38 U.S.C. § 1151 claim in a May 2016 rating decision with an effective date of January 23, 2003 (the date the dental treatment claim was granted). The criteria for rating scars were revised, effective October 23, 2008. The amendment applies to all applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805). Here, the Veteran did not file a claim for these issues, as these issues were implied as such the previous regulations are not for application in this case. Diagnostic Code 7800 provides that scars of the head, face, or neck with one characteristic of disfigurement is assigned a 10 percent rating. A scar of the head, face, or neck with 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; with two or three characteristics of disfigurement, is rated 30 percent disabling. A scar of the head, face, or neck with 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; with four or five characteristics of disfigurement, is rated 50 percent disabling. A scar of the head, face, or neck with 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; with six or more characteristics of disfigurement, is rated 80 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Note 1, the eight characteristics of disfigurement are: a scar 5 or more inches (13 or more cm.) in length; a scar at least 1/4 inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square cm.); underlying soft tissue missing in an area exceeding 6 square inches (39 square cm.); and skin indurated and inflexible in an area exceeding 6 square inches (39 square cm.). Id. Diagnostic Code 7804 assigns ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 under the diagnostic code 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. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Here, the Veteran was afforded VA examination in January 2016. The examiner noted the Veteran did not suffer from any painful scars of the head, face or neck. It was noted that the Veteran had one unstable scar of the head, face or neck with frequent loss of covering of skin over the scar. The examiner also noted since 2003 the Veteran has had more than 20 episodes while eating, where his food would come out of his left nostril. There were no scars that were both painful and unstable and there were no scars of the head, face or neck due to burns. It was also noted that the Veteran’s scar of the left maxilla and hard palate measured 2 by 2 centimeters. There was no elevation, depression, adherence to underlying tissue or missing underlying soft tissue. There was no abnormal pigmentation or texture of the head, face or neck. There was no gross distortion or asymmetry of facial feature or visible or palpable tissue loss. The examiner noted the approximate total area of head, face and neck with missing underlying soft tissue was 3 centimeters. Regarding the Veteran’s 10 percent rating for the scar under Diagnostic Code 7800, the Board finds that a higher rating under Diagnostic Code 7800 is not warranted. There are eight characteristics of disfigurement and the single scar only has one characteristic-it is at least one-quarter inch wide at the widest part. Under Diagnostic Code 7800, a single characteristic of disfigurement warrants a 10 percent rating. The Veteran’s scar does not have any other characteristics of disfigurement, he does not have visible or palpable tissue loss, and he did not have gross distortion or asymmetry of one feature or a paired set. As such, a rating in excess of 10 percent under Diagnostic Code 7800 is not warranted. Turning to the Veteran’s 10 percent rating for an unstable scar, the Board finds that a higher rating under Diagnostic Code 7804 is not warranted. The evidence of record demonstrates the Veteran has only one unstable scar. Thus, the evidence does not show that a rating in excess of 10 percent is warranted. The Veteran’s singular scar is unstable. The scar also has one characteristic of disfigurement. The medical evidence does not show that a rating in excess of 10 percent for a single unstable scar is warranted. The medical evidence does not show that a rating in excess of 10 percent for a scar with one characteristic of disfigurement is warranted. As such, the scar ratings do not warrant increases. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel