Citation Nr: 1814647 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 14-37 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 10 percent disabling for service-connected fifth (trigeminal) cranial nerve disability, left side, prior to November 18, 2014, and in excess of 30 percent disabling thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran had active service in the U.S Navy from June 1968 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia (hereinafter Agency of Original Jurisdiction (AOJ)). In the December 2012 decision, the AOJ continued a rating of 10 percent for the claimed condition; in addition the AOJ granted service connection for loss of taste as secondary to service-connected trigeminal cranial nerve disability and assigned a noncompensable evaluation from March 8, 2011. In October 2013, the Veteran limited the appeal to the issue of a rating greater than 10 percent for service-connected trigeminal cranial nerve disability. In April 2012, the AOJ assigned a rating of 20 percent, effective August 3, 2011. In February 2015, following the issuance of a supplemental statement of the case (SSOC), the AOJ assigned a rating of 30 percent, effective November 18, 2014. These staged ratings do not represent the maximum disability ratings assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum he is seeking. As higher ratings are available and a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claim for a higher rating, as reflected on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). The Board has characterized the issue on appeal to reflect that these staged ratings are in effect. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In April 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The issue of reopening a service connection claim for loss of teeth, secondary to service-connected fifth (trigeminal) cranial nerve disability, left side, has been raised by the record in a statements made at the February 2017 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT For the entire rating period on appeal, the Veteran's service-connected trigeminal cranial nerve disability, left side, most nearly approximates moderate incomplete paralysis of the trigeminal cranial nerve. CONCLUSION OF LAW The criteria for an evaluation in excess of no greater than 30 percent for service-connected trigeminal cranial nerve disability, left side, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.124, 4.124a, Diagnostic Codes (DC) 8205 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.159 (2017). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). No such arguments have been raised. In light of the foregoing, nothing more is required. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his or her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claims on appeal. The Veteran was also afforded multiple medical examinations relating to his claim for a higher rating, most recently in November 2014. The Board recognizes VA's duty to obtain updated clinical information when the available evidence indicates a worsening of the disability. A review of the objective evidence reflects no credible lay or medical evidence of worsening since the most recent November 2014 examination. As such, the Board finds that the examinations of record, considered collectively, are adequate for ratings purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to these claims. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Trigeminal Cranial Nerve The Veteran contends that he is entitled to an increased disability rating for service-connected trigeminal cranial nerve disability. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected trigeminal cranial nerve disability is evaluated pursuant to Diagnostic Code 8205. Under this Code, a 10 percent rating is warranted for moderate incomplete paralysis. A 30 percent rating is warranted for severe incomplete paralysis. A 50 percent rating is warranted for complete paralysis. Further, a Note following the Code states that the rating is dependent upon the relative degree of sensory manifestation or motor loss. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. In this case, the Board notes that the record reflects recurrent complaints of numbness and incomplete paralysis of the left side of the mandible. For example, the February 2011 VA examination noted the Veteran described numbness of the left side of the tongue and jaw, difficulty chewing and distinguishing taste, and a feeling of persistent swelling on the left side of his face over the previous 5-10 years. The November 2014 VA examination noted symptoms of pain, paresthesias, and numbness of the left side of the face. The Veteran also described his facial numbness at the February 2017 hearing. The Board notes that it does not appear the 2011 VA examination provided much detail regarding the extent of the Veteran's incomplete paralysis for the left-sided mandible numbness. Nevertheless, the November 2014 VA examiner found that the left side was manifested by severe incomplete paralysis. Although the Board is not bound by the VA examiner's description, it is competent medical evidence that must be taken into consideration. Moreover, the Board finds it is consistent with the other evidence of record for the entire appeal period. In particular, the Board notes that the Veteran's complaints of numbness and difficulty with motor function are consistent throughout the appeal period. Thus, the Veteran's left-sided mandible numbness is entitled to a compensable rating of at least 30 percent under Diagnostic Code 8205 for the entire rating period on appeal. Regarding the issue of whether a rating in excess of 30 percent is warranted for the left-sided mandible numbness, the Board finds that the left side is not manifested by complete paralysis. For example, the reported symptomatology at the November 2014 VA examination was noted as being of a mild to moderate nature. Moreover, muscle strength testing of the trigeminal cranial nerve assessed, at most, severe (but not complete) paralysis. In addition, sensory evaluation for facial sensation was normal. Further, the examiner provided a summary evaluation indicating that there was severe incomplete paralysis of the left trigeminal cranial nerve. The Veteran has submitted a medical statement describing him as having no feeling on his left jaw and tongue. However, this medical statement appears to be reiterating the Veteran's statement and does not reflect that an actual sensory examination was conducted. At the November 2014 VA examination, the Veteran described an inability to chew on his left side, being unable to eat hard foods or foods requiring a lot of chewing, inability to feel food on his left side, lack of ability to distinguish heat/cold, and being unable to taste. The November 2014 VA examiner nonetheless conducted a sensory and motor examination which showed that motor and sensation were not completely lost. The Board assigns greater probative weight to the November 2014 VA examination report which clearly shows the findings were rendered based on actual clinic findings from motor and sensory testing. The Veteran's reported symptoms and severity is deemed credible, but as it pertains to the finding of complete paralysis the November 2014 clinic findings showing less than complete motor and sensory loss are accorded greater probative weight. Otherwise, the Board also finds that nothing in the other evidence of record, to include the medical treatment records, supports a finding of complete paralysis. The Veteran has attributed other symptoms to his left fifth cranial nerve disability. He has been separately service-connected for loss of taste. The evaluation assigned for loss of taste has not been appealed to the Board. The AOJ has finally denied claimed additional disabilities of loss of chewing teeth on the right side, and digestion problems. The Board has no jurisdiction to evaluate these symptoms as service connection has been finally denied. However, as noted in the INTRODUCTION, the Board has referred to the AOJ the issue of reopening the right side dental claim based on the recent opinion provided. In view of the foregoing, the Board finds that the Veteran is entitled to a rating of, but not greater than, 30 percent for his service-connected trigeminal cranial nerve disability for the entire appeal period. ORDER A disability rating of no more than 30 percent for fifth (trigeminal) cranial nerve, left side, is granted for the entire appeal period; subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs