Citation Nr: 1817262 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-22 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for left trigeminal nerve shrapnel wound. 2. Entitlement to an initial compensable rating for headaches. 3. Entitlement to an effective date earlier than July 14, 2010 for the grant of service connection for left trigeminal nerve shrapnel wound. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and J.G. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to November 1967. The Veteran was awarded the Combat Infantryman Badge and the Purple Heart Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In an April 2011 rating decision, the RO granted service connection for headaches as secondary to service-connected-connected gunshot wound scar below the left eye, effective July 14, 2010. This disability was assigned a noncompensable rating. The Veteran appealed the disability rating. In June 2016, the Veteran testified before the undersigned at a Board hearing via video conference from the RO. In September 2016 and June 2017, the Board remanded this case. In this most recent remand, the Board requested that the RO readjudicate the claim for a higher initial rating for headaches with consideration of recharacterizing and rating this disability consistent with the medical opinions of record that indicated that a diagnosis of left-sided trigeminal neuralgia as a residual of the Veteran's inservice left facial shrapnel injury would be more appropriate than the headache diagnosis. In a December 2017 rating decision, the RO granted a total rating based on individual unemployability due to service-connected disabilities as well as service connection for trigeminal nerve shrapnel wound, left, with an evaluation of 30 percent effective July 14, 2010. The RO indicated that a higher rating for migraine headaches could not be made because while the left trigeminal nerve shrapnel wound disability warranted separate service connection, the symptoms previously attributed to the Veteran's service-connected headaches were now being compensated at 30 percent for trigeminal nerve damage pursuant to Diagnostic Code 8205 and thus, the Veteran could not be simultaneously be compensated for headaches under another diagnostic code (Diagnostic Code 8100). Given the nature of the Veteran's increased rating claim and the fact that the claimed symptomatology under consideration in this appeal is now attributed to, and rated as, trigeminal nerve injury, the Board finds that both initial rating matters must be considered as on appeal. The issue of entitlement to an effective date earlier than July 14, 2010 for service connection for trigeminal nerve disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The level of impairment of the Veteran's left trigeminal nerve shrapnel wound disability more nearly represents complete rather than severe disability. 2. The Veteran's symptoms due to headaches are contemplated by his left trigeminal nerve shrapnel wound disability. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for left trigeminal nerve shrapnel wound have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8205 (2017). 2. The criteria for a compensable rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case. The Veteran was also afforded a Board hearing which was adequate. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not alleged any notice or development deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In September 2010, the Veteran was afforded a VA examination. At that time, the Veteran reported headaches/pain behind the eye lasting 1-3 days. Visual examination was normal. The headaches were weekly, but not prostrating. A skull x-ray revealed there was an oblong radio opaque foreign body noted in the left orbit postero-laterally consistent with history of a shrapnel; otherwise unremarkable study. The examiner indicated that the Veteran's headaches, based on onset and location of pain, were at least as likely as not related to the shrapnel wound behind the right eye with retained fragment. A July 2011 private ophthalmologist statement of Dr. C.W. indicated that within six months after the shrapnel injury, the Veteran began to develop pressure-like pain behind the left eye and there was the possibility that shrapnel entered the left periorbital region and caused permanent damage to the trigeminal nerve resulting in chronic ongoing pain. It was noted that the pain came intermittently and lasted anywhere from a few hours to three days in a row. The pain was severe and the Veteran took 1200 to 1800 mg of aspirin daily to relieve the pain during the episodes. The pain could keep him awake at night. The Veteran had tenderness along the periorbital region, and the distribution of his pain appeared to be over the trigeminal nerve region. Eye disability was not shown to be due to the inservice injury. Rather, the Veteran had chronic pain over the left orbit and it appeared that there was pain in the distribution of the trigeminal nerve which was most likely caused by the shrapnel when it entered the left periorbital. In August 2015, the Veteran was afforded a VA examination. The Veteran reported having headaches 2-3 times per week and lasting 1-2 hours accompanied by visual changes and poor balance. He related that he had constant pain located on one side of his head. The pain was on the left side of the head, but was not prostrating. The headaches interfered with the Veteran's focusing and executive functioning, and made workdays difficult. In October 2016, the Veteran was afforded another VA examination. It was noted that the Veteran reported ongoing headaches of the left facial area which were unrelieved with prescription medications. The Veteran reported occasional relief with over-the-counter "BC powder." He denied nausea and vomiting. He had to wear dark glasses due to light sensitivity to the left eye associated with a watery left eye. The Veteran reported chronic pain over the left orbit and face associated with pain in the distribution of the trigeminal nerve. He described pain as intense and stabbing behind the left eye. The examiner noted that the service treatment records/military separation examination indicated a shrapnel injury to the left side of the head in June 1967. A December 2011 computerized tomography (CT) indicated metallic shrapnel foreign body in the extracranial soft tissues in the left temporal/infratemporal region. Examination revealed tenderness along the periorbital region in the distribution over the trigeminal nerve region. He reported symptoms occurring 3-4 times a week lasting about an hour. The examiner indicated that the Veteran had intense and stabbing pain behind the left eye as well as sensitivity to light, but did not have characteristic prostrating attacks. The examiner stated that the Veteran was service-connected for migraine headaches. However, the examiner opined that the original diagnosis was in error and that the current symptom of a headache is not consistent with migraines. The examiner stated that symptoms of trigeminal neuralgia include headache, intense facial pain, stabbing facial pain, sensitivity to movement and facial pain on movement, and watery eye. The Veteran had symptoms on the same side as the shrapnel injury which were consistent with left trigeminal neuralgia due to injury caused by the shrapnel that entered the left periorbital region causing prominent nerve damage to the trigeminal nerve as a result of the impact of the shrapnel as indicated by private ophthalmologist. The majority of the evidence suggested a nexus linking the Veteran's current left-sided trigeminal neuralgia to the inservice left facial shrapnel injury and it was at least as likely as not due to the military service shrapnel injury. The Veteran's trigeminal neuralgia disability has been assigned a 30 percent rating under Diagnostic Code 8205. Neuritis of the fifth (trigeminal) cranial nerve is rated under Diagnostic Code 8304 and neuralgia of the fifth (trigeminal) cranial nerve is rated under Diagnostic Code 8405. Both are rated as for paralysis of that nerve under Diagnostic Code 8205. Evaluations under Diagnostic Code 8205 are dependent upon the relevant degree of sensory manifestation or motor loss. Under Diagnostic Code 8205 (paralysis of fifth (trigeminal) cranial nerve), a 10 percent rating is warranted for moderate incomplete paralysis of the nerve; a 30 percent rating is warranted for severe incomplete paralysis of the nerve; and a 50 percent rating is warranted for complete paralysis of the nerve. The rating is dependent on relative degree of sensory manifestation or motor loss. 38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The level of impairment of the Veteran's left trigeminal nerve shrapnel wound disability more nearly represents complete rather than severe disability when taking into consideration the extent of his headache, intense facial pain, stabbing facial pain, sensitivity to movement and facial pain on movement, and watery eye. Thus, a 50 percent rating which is the maximum rating is warranted. With regard to headaches, a noncompensable rating was assigned. Under Diagnostic Code 8100, a noncompensable percent rating is assigned for less frequent attacks than for a 10 percent rating; a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and a maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating" nor has the Court. Fenderson, supra, (reciting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." Under Diagnostic Code 8100, the term "economic inadaptability" is not synonymous with an "inability to work." Pierce v. Principi, 18 Vet. App. 440 (2004). The Veteran does not exhibit prostrating attacks due to his headaches. Moreover, and generally put forth by the Veteran, his headaches/head pain is due to his trigeminal nerve injury. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In this case, the same headache manifestations cannot be compensated under two different codes. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2015). In this case, the evidence supports a higher rating of 50 percent for trigeminal nerve disability, but a preponderance of the evidence is against a compensable rating for migraine headaches. ORDER Entitlement to an initial rating of 50 percent for left trigeminal nerve shrapnel wound is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for headaches is denied. REMAND The Veteran has submitted a notice of disagreement as to the issue of entitlement to an effective date earlier than July 14, 2010 for service connection for left trigeminal nerve shrapnel wound. As such, a statement of the case must be issued. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The Veteran should be sent a statement of the case as to the issue of entitlement to an effective date earlier than July 14, 2010 for service connection for left trigeminal nerve shrapnel wound in accordance with 38 U.S.C. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the Veteran perfects the appeal by submitting a timely and adequate substantive appeal on this issue, then the claim should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs