Citation Nr: 1808616 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-10 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for right lingual nerve paresthesia. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans' Affairs ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran had active duty from October 1991 to April 1994 and from February 1995 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for right lingual nerve paresthesia and assigned a 10 percent rating, effective December 29, 2009. A March 2013 rating decision granted an increased rating of 30 percent for right lingual nerve paresthesia, effective December 29, 2009. As this is not the highest possible rating for this disability, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal was previously before and remanded by the Board for additional development in March 2014 and again in June 2017. It has now been returned to the Board for further adjudication. The Board notes that this case was erroneously routed to a different veterans service organization (VSO) for briefing, but the VSO of record, to which the most recent Supplemental Statement of the Case was furnished, is in fact the one listed on the front page. In a September 2011 statement, the Veteran asked that her appeal be advanced on the docket due to a financial hardship. The Veteran provided documentation to support his request. The Board finds that this is good or sufficient cause to advance the case on the docket; thus, the motion to advance the appeal on the Board's docket is granted. See 38 C.F.R. § 20.900(c). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The preponderance of the evidence indicates that throughout the period on appeal, the Veteran's right lingual nerve paresthesia was not characterized by complete paralysis. 2. The preponderance of the evidence indicates that throughout the period on appeal, the Veteran's service-connected disability did not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for right lingual nerve paresthesia have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code (Code) 8212 (2017). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that 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; 38 C.F.R. § 3.159; 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). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Therefore, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Furthermore, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Id. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where service connection 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, in those cases, the relevant 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. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's claimed dental/right jaw disorder has been diagnosed as right lingual nerve paresthesia. It has been service-connected and rated as paralysis of the twelfth (hypoglossal) cranial nerve under 38 C.F.R. § 4.124a, Code 8212. Moderate incomplete paralysis of the twelfth (hypoglossal) cranial nerve warrants a 10 percent rating; severe incomplete paralysis warrants a 30 percent rating, and complete paralysis warrants a 50 percent rating. A noncompensable evaluation is warranted for symptoms not meeting these criteria. 38 C.F.R. § 4.31. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible, as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). After determining the competency and credibility of evidence, the Board must then weigh its probative value. Caluza, 7 Vet. App. 498, 511-12. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Here, the Veteran contends that she is entitled to an increased evaluation of her diagnosed right lingual nerve paresthesia because: she experiences a high level of pain associated with this condition; the medications she takes to relieve the pain have "cause[d] side effects that hinder [her] from working at full capacity"; and she has "difficulty chewing and exercising" as well as slurred speech as a result of the condition. VA Form 21-4138, Statement in Support of Claim received in June 2012; Veteran's Letter in Reply to Notification Letter received in January 2013. The Board finds the most pertinent evidence to consist of these statements by the Veteran, her VA treatment records, and the relevant VA examinations of record. The Veteran's medical records document her complaints of jaw pain during the period on appeal. See, e.g., VA Treatment Records received in February 2010, Well Women's Annual Exam note dated in December 2009; VA Treatment Records received in November 2016, Primary Care Physician Note dated in June 2012. However, they do not indicate with sufficient specificity the extent of the Veteran's neurologic paralysis or other related symptoms. The Veteran was afforded three VA examinations in relation to her claimed dental/jaw disability, which she claimed as a jaw disorder. The first was in September 2010. The examiner that conducted that examination diagnosed the Veteran with: right lingual nerve paresthesia secondary to trauma; and pain secondary to surgical placement of dental implants. Regarding the latter diagnosis, the Board notes that the Rating Schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Regarding the former diagnosis, the exact nerve involved and the extent of the paresthesia was not noted, but both were clarified during a subsequent VA examination in February 2013. During that second relevant examination, the Veteran was diagnosed with paralysis of the twelfth (hypoglossal) cranial nerve, which was characterized by the examiner as a severe incomplete paralysis of that nerve. Noted symptoms included constant severe pain in the right mid and lower face, dull pain in the right upper face, and moderate difficulty chewing. The Veteran was examined again in January 2015, at which point in time her paralysis of the twelfth cranial nerve was determined to be only a moderate incomplete paralysis, instead of a severe incomplete paralysis. Nevertheless, regardless of whether the Veteran's right lingual nerve paresthesia is manifested by a moderate or severe paralysis of her twelfth cranial nerve, one thing that is clear is that it is not manifested by complete paralysis of that nerve. Were it proven that she did suffer from complete paralysis of the nerve, she would be entitled to an increase, but without evidence of such a complete paralysis, the Veteran is not entitled to an increased evaluation beyond the 30 percent rating that she is currently assigned. 38 C.F.R. § 4.124a, Code 8212. Although the Veteran may feel a significant amount of pain in association with this condition, which she claims causes her difficulty chewing, exercising and speaking, the Board finds that that pain alone does not warrant a separate evaluation, pursuant to relevant law as set forth above. With regard to her claimed difficulties chewing, exercising, and speaking, the Board finds that they are fully contemplated by her current 30 percent rating under Code 8212, since that Code explicitly contemplates loss of motor function of the tongue (which would presumably cause such difficulties). The Board has also considered whether the Veteran's right lingual nerve paresthesia should be referred for extraschedular consideration based on her complaints of pain. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Here, it seems that the Veteran has, on occasion, indicated that her jaw was not painful. For example, a June 2011 VA treatment note indicates that she had "normal jaw movement without pain" at that time. See VA Treatment Records received in November 2016, Primary Care Physician Note dated in June 2011. Thus, the Board finds that the Veteran's jaw pain is not constant. While severe pain is not explicitly mentioned in the rating criteria for Code 8212, the Board still finds that the criteria does reasonably describe the Veteran's disability levels and symptomology pertaining to her service-connected disability, particularly considering that, as previously mentioned, many if not all of the symptoms that the Veteran claims result from her pain are contemplated by the currently assigned rating. Even if the one symptom of pain is not explicitly mentioned, that does not mean that the applicable Code does not reasonably describe the Veteran's disability level. Thus, all things considered, the Board finds that Code 8212 does reasonably describe the Veteran's disability level, and that the assigned schedular ratings is adequate. Consequently, referral for extraschedular consideration is not required and the Veteran is not entitled to an initial rating in excess of 30 percent for right lingual nerve paresthesia. III. TDIU The Veteran also seeks TDIU. TDIU is assigned when a service-connected disability results in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). In analyzing the meaning of "substantially gainful employment," courts have concluded that "the test is whether a particular job is realistically within the physical and mental capabilities of the claimant." Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). Accordingly, a Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). To be granted TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to any impairment cause by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the general disability rating schedule, which is based on the average work-related impairment caused by a disability, a claim for "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (noting that the level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, training in business administration and computer programming, and history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and part-time work as a tutor). Regulations provide that if the above-mentioned percentage requirements for a schedular TDIU are not met, TDIU may still be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of Compensation and Pension Services (DCPS) for extraschedular consideration. In this case, the Veteran does not meet the criteria for schedular consideration for TDIU, as her only service-connected disability is her right lingual nerve paresthesia at 30 percent disabling. See 38 C.F.R. § 4.16(a). The inquiry thus turns to 38 C.F.R. § 4.16(b). The RO submitted the Veteran's TDIU claim to the DCPS for extraschedular consideration in June 2015, in accordance with the directives of the March 2014 Board remand. In an April 2016 administrative opinion, it was concluded that the evidentiary record fails to demonstrate that the Veteran was unable to secure or follow substantially gainful employment as a result of her service-connected disabilities. The Director noted that although the evidentiary record shows functional loss attributed to the cranial nerve disability, as manifested by moderate incomplete paralysis with such symptoms as numbness, pain, and difficulty with chewing and swallowing, the record clearly does not reveal that the service-connected cranial nerve disability is of such severity to render the Veteran unemployable. The Veteran appears to contend that her service-connected right lingual nerve paresthesia (formerly claimed as right jaw disorder) has prevented her from following and maintaining gainful employment since about 2010 when she was terminated from the last job that she was able to keep for more than a year. See Veteran's Letter in Reply to Notification Letter received in January 2013; VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability received in July 2014. As a preliminary matter, the Board notes that the evidence of record indicates that the Veteran was hired for and worked in three other positions with three other employers between then the time of her termination from the previously-mentioned job in 2010 and February 2013. See id. Specifically, according to the Veteran, she worked at: the Florida Department of Juvenile Justice from September 2011 to February 2012; Universal Healthcare from March 2012 to June 2012; and Hillsborough County Health Department from January 2013 to February 2013. Id. She apparently worked as a case manager and/or registered nurse (RN) in 2013, the year before she stopped working, as she claims, on account of her service-connected disability. Id. She had already completed two years of college at the time of her July 2014 formal application for TDIU and she was expected to begin a course of study in Public Health at the University of South Florida (USF) less than a month later. Id. In a written statement received in October 2012, the Veteran stated that she was recently terminated from employment, and that her symptoms of isolation, an inability to concentrate, and arriving too early and leaving too late contributed to her termination. See VA Form 21-4138, Statement in Support of Claim, received in October 2012. An accompanying letter from the Florida Department of Economic Opportunity indicates that the Veteran was terminated from one of her previous employers because she did not perform the job to the employer's satisfaction. See Correspondence received in October 2012. The Veteran apparently applied for vocational rehabilitation services from VA in or about April 2013. See Vocational Rehabilitation records received in May 2017; VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation, received in April 2013. In that application, the Veteran wrote that she was having constant chronic dental pain which, without medication, prevented her from speaking at lengths, and that the pain medication that she was taking therefor made her drowsy and unable to work 12 hour shifts, but still allowed her to function. The Veteran's request for vocational rehabilitation was apparently granted, and in an email dated in May 2013, in relevant part, the Veteran's vocational rehabilitation counselor (VRC) noted that the Veteran was very resistant to doing anything other than the bare minimum out of the home, did not want to attend school on campus, wanted to work from home, and tried to do everything over the telephone, to include job interviews. In what seems to be a memo to the Veteran's file dated in May 2013, her VRC noted that the Veteran was displaying what the VRC termed a "lack of social involvement." Id. The VRC noted that she (the VRC) was making it a requirement for the Veteran to address her "lack of social involvement" by way of mental health counseling, and that the Veteran grew angry upon being notified of that requirement. The VRC wrote that feasibility - presumably that of vocational rehabilitation, in general - was a concern, based on the Veteran's "behavior, lack of social skills and lack of motivation to participate in further mental health treatment other than medication management." In a May 2014 feasibility determination, the Veteran's VRC noted that she had serious employment handicaps to include: record of current neuropsychiatric condition(s); alcohol/substance abuse; severity of disabling condition(s); unstable work history; chronic pain; withdrawal from society; the extent and complexity of needed rehabilitation services; difficulties with communication; and a criminal record. See Vocational Rehabilitation records received in May 2017. The Board notes that in this determination, the VRC indicated that the Veteran reported that she left her previous jobs for various reasons, including having been terminated for asking too many questions, resigning due to an altercation with another employee, and relocating to a new area. Id. The Veteran did not report, at that time, that she ever quit or was ever terminated due to her service-connected disability. On a VA Form 21-4192, Request for Employment Information in Connection With Claim for Disability Benefits received in December 2014, the Veteran indicated that she voluntarily resigned from what was then her last place of employment. In a VA Form 21-4138, Statement in Support of Claim also received in December 2014, the Veteran claimed that she voluntarily resigned from the Florida Department of Juvenile Justice after being taunted because of her slurred speech by inmates, that she left the Hillsborough County Health Department because the job began to require too much verbal communication, and that she was terminated from Universal Healthcare due to complaints from customers saying that she sounded sleepy and was hard to understand. As mentioned above, the Veteran was afforded multiple examinations for her right lingual nerve paresthesia. During the above-mentioned February 2013 VA examination, neither the Veteran nor the examiner noted any of her claimed difficulties with her speech. During the January 2015 VA examination, the examiner noted that the condition does impact the Veteran's ability to work based on her statement that she has difficulty talking all day. The Board finds, based on its review of all of the evidence of record, that the preponderance of the evidence indicates that the Veteran is not precluded from following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 4.15. The Veteran has stated, at times, that she has left or been fired from previous employers and is unable to maintain employment due to her speech difficulties caused by her service-connected right lingual nerve paresthesia. However, at other times, she has indicated that she left her previous employers or was terminated by them for other reasons. Her vocational rehabilitation records indicate that several barriers to gainful employment existed in her case, most of which were not related to her service-connected disability. One example of such a barrier which seemed to be consistently problematic throughout the course of the Veteran's interactions with the vocational rehabilitation staff was what the Veteran's vocational rehabilitation counselor characterized as, in essence, the Veteran's lack of motivation regarding leaving - and, in turn, working or studying outside of - her home. Amongst all of the medical records, vocational rehabilitation records, and VA examination opinions, there is little to no objective evidence of the Veteran's claimed speech difficulties interfering with employment. More specifically, there is little, if any, indication that the Veteran's physicians, counselors, or examiners ever observed the claimed speech difficulties themselves. Furthermore, even if it is conceded that the Veteran does indeed have significantly slurred speech and a high level of jaw pain when speaking for long periods of time, this still would not necessarily render the Veteran incapable of following a substantially gainful occupation that requires minimal conversation. Moreover, the Veteran herself said that other factors, such as her isolation, inability to concentrate, and her arriving too early and leaving too late contributed to one or more of her more recent terminations from previous employment. See VA Form 21-4138, Statement in Support of Claim, received in October 2012. Her service-connected right lingual paresthesia and reported speech difficulties were not mentioned as a cause of her previous terminations or resignations at that time. Thus, based on the above, it is less likely than not that the Veteran is unable to obtain or maintain gainful employment based solely on her service-connected disability. Accordingly, TDIU is denied. ORDER Entitlement to an initial rating in excess of 30 percent for right lingual nerve paresthesia is denied. Entitlement to TDIU is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs