Citation Nr: 1808907 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-09 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for left facial nerve palsy (seventh facial cranial nerve) status-post left total parotidectomy, microanastomosis of the left marginal mandibular nerve for left parotid mass. 2. Entitlement to an initial increased rating in excess of 10 percent for Frey's Syndrome secondary to injury to the auriculotemporal nerve, left fifth trigeminal cranial nerve, status post left total parotidectomy, microanastomosis of the left marginal mandibular nerve for left parotid mass. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1986 to January 1991. This matter is before the Board of Veterans' Appeal (Board) on appeal of an August 2012 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2015, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of entitlement to service connection for hearing loss, tinnitus, cervical spine disorder, dysphagia, lymphadenopathy, and difficulty with mastication as secondary to service connected disabilities have been raised by the record in a September 2012 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, 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. For the entire period on appeal, the Veteran's left facial nerve palsy did not result in more than severe incomplete paralysis of the seventh facial cranial nerve. 2. For the entire period on appeal, the Veteran's Frey Syndrome did not result in more than moderate incomplete paralysis of the fifth facial cranial nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left facial nerve palsy are not met. 38 C.F.R. § 4.124a Diagnostic Code (DC) 8207 (2017). 2. The criteria for a rating in excess of 10 percent for Frey's Syndrome are not met. 38 C.F.R. § 4.124a DC 8205 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). As directed by the Board's March 2015 remand order, the Veteran was sent a notice letter in June 2015 that satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The Veteran's service treatment and post-service treatment records have been obtained. The Veteran was provided a VA medical examination in August 2015. The examination is sufficient evidence for deciding the claim. The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. Thus, VA's duty to assist has been met. II. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration 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. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's left facial nerve palsy is rated under 38 C.F.R. § 4.124a DC 8207. Under Diagnostic Code 8207, a 10 percent rating is applicable 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 complete paralysis. These ratings are to be assigned "dependent upon the relative loss of innervations of facial muscles." DC 8207. Where the 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 (2017). Frey's Syndrome is rated under 38 C.F.R. § 4.124a DC 8205. Under DC 8205, a 10 percent rating is applicable when there is incomplete, moderate paralysis of the fifth (facial) cranial nerve; a 30 percent rating is for incomplete severe paralysis; and a 50 percent evaluation for complete paralysis. These ratings are to be assigned "dependent upon the relative degree of sensory manifestations or motor loss." DC 8205. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 4.2, 4.6 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks a rating in excess of 20 percent for left facial nerve palsy and an initial rating in excess of 10 percent for Frey's Syndrome. The Board finds that a rating in excess of 20 percent for left facial nerve palsy and in excess of 10 percent for Frey's Syndrome are not warranted for the reasons discussed below. A VA examination was conducted in February 2012. The Veteran reported that, approximately two years ago, eating, drinking, and chewing gum started to trigger sweating on her left cheek, which was diagnosed as Frey's Syndrome. Upon examination, moderate paresthesia of the left upper face, eye, and/or forehead, severe paresthesia of the mid face, and moderate paresthesia of the side of the mouth and throat was observed. Sensory testing revealed decreased sensations to light touch on the left upper face and forehead. The Veteran also had left sided moderate numbness mid face. The VA examiner noted moderate difficulty with speaking and severe increase of salivation; however, muscle strength for the fifth cranial nerve, which is the muscles of mastication, was normal. The VA examiner reported that the Veteran's left facial nerve palsy resulted in severe incomplete paralysis of the seventh cranial nerve and Frey's Syndrome resulted in moderate incomplete paralysis of the fifth cranial nerve. Another VA examination was conducted in August 2015. The Veteran reported that her cranial nerve conditions cause lower self-esteem due to the weakness and atrophy of the left side of her face. She also reported that the mass on the left side of her neck impacted her ability to work and that she is treated "indifferently" at her job due to her disabilities. The examiner found moderate left facial weakness and/or mild dysarthria. Muscle strength testing revealed moderate incomplete paralysis of the seventh cranial nerve and normal muscle strength for the fifth cranial nerve. The VA examiner noted sweating on the left side of the Veteran's face. The Veteran had mild numbness mid face and moderate paresthesia due to her injury to her fifth cranial nerve. The examiner noted mild difficulty speaking along with mildly decreased salivation. The Veteran had decreased sensation of her left upper face, forehead and lower face. The examiner opined that the Veteran's left facial nerve palsy resulted in moderate incomplete paralysis of the seventh cranial nerve and Frey's Syndrome resulted in moderate incomplete paralysis of the fifth cranial nerve. Entitlement to the next higher rating of 30 percent for left facial nerve palsy requires a showing of complete paralysis of the seventh cranial nerve. The record does not provide evidence that the Veteran suffers from complete paralysis due to her left facial nerve palsy. The 2012 VA examination noted severe incomplete paralysis; however, the Veteran's most recent VA examination reported moderate incomplete paralysis of the seventh cranial nerve, indicating improvement as opposed to worsening of the Veteran's condition. There is no competent evidence of record documenting that the seventh cranial nerve was completely paralyzed. There are no clinical findings the other medical records which documents complete paralysis of the nerve. The symptomology associated with the service connected disability does not more nearly approximate loss of innervations of the facial muscles. Sensation was decreased but not absent and appropriate movement was present at the time of the VA examinations. As such, the record does not contain evidence to support a rating in excess of 20 percent. In order to warrant the next higher rating of 30 percent for Frey's Syndrome, the evidence must show severe incomplete paralysis of the fifth cranial nerve. The VA examiner in 2012 found that the Veteran had moderate difficulty speaking and increased salvation; however, the VA examiner in 2015 reported mild difficulty speaking and mildly decreased salvation. Both VA examiners found the Veteran's muscle strength for the fifth cranial nerve was normal and that Frey's Syndrome resulted in no more than moderate incomplete paralysis of the fifth cranial nerve. The Board finds the opinion of the medical examiners highly probative with regard to the evaluation nerve impairment present. Physical examinations including pertinent testing were conducted and the appropriate records were reviewed. The examiner's opinions as to the extent of nerve impairment were based on interpretations of the physical findings. There are no clinical findings in the examination reports or the other medical records which supports a finding that the Frey's Syndrome is productive of severe incomplete paralysis of the fifth cranial nerve. The Board finds the evidence of record does not support a finding of severe incomplete paralysis; thus, a rating in excess of 10 percent is not warranted. The Board has considered whether other rating codes could apply to the Veteran's left facial nerve palsy or Frey's Syndrome and finds that none would result in entitlement to a higher disability rating. The diagnostic codes discussed above are directly applicable to the specific nerves for which service connection has been granted. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As such, after considering the all the evidence of record, the Board finds that the criteria for a disability rating in excess of 20 percent for left facial nerve palsy and in excess of 10 percent for Frey's Syndrome have not been meet. 38 C.F.R. § 4.124a DC 8207, 8205. ORDER Entitlement to an evaluation in excess of 20 percent for left facial nerve palsy (seventh facial cranial nerve) status-post left total parotidectomy, microanastomosis of the left marginal mandibular nerve for left parotid mass is denied. Entitlement to an initial evaluation in excess of 10 percent for Frey's Syndrome secondary to injury to the auriculotemporal nerve left fifth trigeminal cranial nerve, status post left total parotidectomy, microanastomosis of the left marginal mandibular nerve for left parotid mass is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs