Citation Nr: 18123732 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 15-41 009 DATE: August 3, 2018 ORDER A separate evaluation for neuropathic pain secondary to Frey’s Syndrome is denied. Prior to November 16, 2017, an initial rating in excess of 30 percent disabling for Frey’s Syndrome is not warranted. From November 17, 2017, a rating of 50 percent disabling for Frey’s Syndrome is granted. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current separate diagnosis of neuropathic pain that was not related to his Frey’s Syndrome. 2. Prior to November 16, 2017, the Veteran’s Frey’s Syndrome disability has been productive of incomplete left side moderate paralysis. 3. From November 17, 2017, the Veteran’s Frey’s Syndrome disability has been productive of complete left side paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection and/or a separate rating for neuropathic pain secondary to Frey’s Syndrome have not been met. 38 U.S.C. §§ 1110, 1111, 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.14. 2. Prior to November 16, 2017, the criteria for a disability rating in excess of 30 percent disabling for Frey’s Syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124(a), Diagnostic Code (DC) 8205. 3. From November 17, 2017, the criteria for a disability rating of 50 percent (maximum schedular) disabling for Frey’s Syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code (DC) 8205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2001 to August 2001 and October 2002 to October 2003. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was granted service-connection for Frey’s Syndrome with an initial rating of 10 percent disabling in August 2012, with an effective date of April 16, 2007. He promptly filed a notice of disagreement (NOD) in October 2012. During the pendency of the claim, in October 2015, a Decision Review Officer (DRO) increased the Frey’s Syndrome disability rating to 30 percent, effective April 16, 2007. On a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). As such, the Board will evaluate the claim as a request for an initial rating greater than 30 percent disabling for Frey’s Syndrome. A January 2015 rating decision denied a separate rating for neuropathic pain due to Frey’s Syndrome. 1. Entitlement to service connection and/or separate rating for neuropathic pain secondary to Frey's Syndrome. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity . . . are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b). However, "[t]he evaluation of the same disability under various diagnoses," a practice called pyramiding, "is to be avoided." 38 C.F.R. § 4.14. The rationale for the prohibition on pyramiding is that "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment" suffered. Brady v. Brown, 4 Vet. App. 203, 206 (1993). When determining whether separate evaluations are warranted, "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet. App. 420, 423 (2011) (quoting Esteban, 6 Vet. App. at 262). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis The Veteran contends that his neuropathic pain is secondary to his service-connected Frey’s Syndrome. The Board finds that the probative, competent evidence weighs against finding that the Veteran has a current disability for neuropathic pain that is separate from his Frey’s Syndrome. The Veteran submitted a claim for neuropathic pain secondary to Frey’s syndrome in April 2013. Subsequently, he was scheduled for a peripheral nerve condition VA examination in December 2014. The examiner concluded that the Veteran did not have a separate peripheral nerve condition. Moreover, the examiner opined that neuropathic facial pain is an integral part of Frey’s Syndrome and not a separate entity. The examiner, a VA neurologist, stated that the neuropathic pain experienced by the Veteran is part of the Frey’s syndrome post-surgery. It was noted that the pain was confined to the left facial area and he experienced prominent “gustatory sudoration” when eating. The Board notes that clinical observations are consistent with the Veteran’s November 2015 substantive appeal where he stated that he has problems when eating and that his face would become painful. In conclusion, the 2014 VA neurologist stated that the neuropathic pain was an integral part of Frey's syndrome, not a separate entity. In November 2017, the Veteran was afforded a cranial nerve condition VA examination. The examination report stated that Frey’s Syndrome was a cranial nerve condition, thus a condition that involves facial nerves. The examiner recorded complete left side paralysis of the cranial nerve V. In addition, to mild paralysis of the left cranial nerve V, involving muscle mastication, and mild paralysis of the left cranial nerve VII, involving facial expression muscles. Further, severe intermittent pain was annotated in the report. However, there were no separate findings related to neuropathic pain being secondary to his Frey’s Syndrome. The Board recognizes the Veteran’s contention that he has a separate neuropathic pain disability caused by his service-connected Frey’s Syndrome. The Board finds him competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in this instance the probative medical evidence carries the greatest weight. Here, VA neurologists physically examined the Veteran in 2014 and 2017; determining that the pain the Veteran was experiencing was part of the Frey’s Syndrome symptomatology. The Board finds a separate rating for neuropathic pain would amount to pyramiding here as the Veteran’s same symptoms of facial pain would be compensated twice. This is prohibited by VA regulation. 38 C.F.R. § 4.14. As such, a separate rating is not warranted. In sum, the probative, competent medical evidence weighs against a finding that the Veteran has a separate current disability for neuropathic pain. As such, the benefit-of-the-doubt rule does not apply as the preponderance of the evidence weighs against the claim. 38 C.FR. §§ 3.102, 3.310, 4.14. 2. Entitlement to an initial rating greater than 30 percent disabling for Frey’s Syndrome. Initial Increased Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. As noted above, 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 or overlapping with the symptomatology of the other. Estban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14 Frey’s Syndrome is rated under 38 C.F.R. § 4.124(a), 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 the decision 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; 38 C.F.R. § 4.2, 4.6. Analysis April 16, 2007 to November 16, 2017 After review of the relevant medical and lay evidence, the Board finds that the criteria for an initial rating greater than 30 percent disabling for Frey’s Syndrome from April 16, 2007 to November 16, 2017 have not been met. The Veteran filed an initial service connection claim for Frey’s Syndrome in April 2007. Medical treatment records submitted in July 2007 showed the diagnosis of Frey’s Syndrome and ongoing prescribed medications, but no definitive symptoms were described. In December 2011, the Veteran was afforded a VA examination for cranial nerves. He was diagnosed with Frey’s Syndrome. The December 2011 VA examination noted severe intermittent pain on his upper face, eye and/or forehead; mid face; and lower face. He experienced severe paresthesias and/or dysesthesias in his upper face, eye and/or forehead, and mid face. Moreover, the examiner recorded incomplete, moderate paralysis of the left side cranial nerve VII (facial). The Veteran underwent a VA examination in December 2014 for peripheral nerve conditions. The examination report reflected no peripheral nerve condition or peripheral neuropathy. The neuropathic pain was attributed to the Frey’s Syndrome and considered an integral part of the diagnosis as opposed to a separate entity. Medical treatment records from September 2015 to March 2017, are silent for paralysis changes involving the Veteran’s Frey’s Syndrome disability. Based on the relevant evidence above, the Board finds that the Veteran’s symptoms from April 16, 2007 to November 16, 2017, reflected symptomatology more nearly approximated by left side incomplete severe paralysis, thus warranting a 30 percent disabling rating. The December 2011 VA examination noted severe intermittent pain on his upper face, eye and/or forehead; mid face; and lower face. He experienced severe paresthesias and/or dysesthesias in his upper face, eye and/or forehead, and mid face. The examiner concluded he had left side cranial nerve incomplete, moderate paralysis. The Veteran did not experience complete facial paralysis; thus, a 50 percent rating was not warranted. The Board recognizes the Veteran’s contentions that his symptoms warrant a higher initial rating. The Board finds him competent and credible in his assertions. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in this instance the probative medical evidence of record outweighs the Veteran’s contentions. The diagnosis of Frey’s Syndrome requires medical expertise and training outside of lay expertise. The examiner has reviewed the medical history, considered lay testimony, and provided a rationale for the Board to evaluate the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The totality of the weight of competent, probative evidence shows the Veteran’s symptomatology reflects a frequency, severity, and duration not commensurate with the criteria for the next-higher rating of 50 percent disabling. Moreover, the evidence of record shows his symptoms have been generally the same level of disability during this period of the appeal; therefore, staged ratings are not necessary. See Fenderson, 12 Vet. App. at 126-27. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial rating in excess of 30 percent disabling for the period of April 16, 2007 to November 16, 2017. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. November 17, 2017 to the Present After review of the relevant medical and lay evidence, the Board finds that a rating of 50 percent disabling for Frey’s Syndrome is warranted from November 17, 2017 to the present. In November 2017, the Veteran was afforded a cranial nerve VA examination. The examination recorded complete paralysis in the cranial nerve summary evaluation of the fifth (trigeminal) nerve. Additionally, the examination report reflects mild paralysis of the left cranial nerve V and mild paralysis of the left cranial nerve VII. Based on the annotations recorded in the 2017 VA examination, the Board finds that his left facial nerve disability picture is more nearly approximated by the maximum schedular rating of 50 percent under Diagnostic Code 8205, as of the date of this examination when such was factually ascertainable. 38 C.F.R. § 3.400(o). Moreover, the evidence of record shows his symptoms have been generally the same level of disability during the period in question; therefore, additional staged ratings are not necessary. See Fenderson, 12 Vet. App. at 126-27. (CONTINUED ON THE NEXT PAGE)   In sum, the Board finds a rating of 50 percent (maximum schedular) disabling is warranted for the period of November 17, 2017 to the present. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel