Citation Nr: 20008289 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 19-17 611 DATE: January 31, 2020 ORDER Entitlement to service connection for tension headaches as secondary to the needle trauma to nerve in the left lower jaw area compensated under 38 U.S.C. § 1151 is denied. Entitlement to an initial rating in excess of 10 percent for needle trauma to nerve in the left lower jaw is denied. FINDINGS OF FACT 1. The Veteran’s tension headaches are not proximately due to his needle trauma to nerve in the left lower jaw. 2. Service-connected residuals of needle trauma to nerve in the left lower jaw area is manifested by mild to moderate numbness/neuropathy, best described as moderate incomplete paralysis, which does not more closely approximate severe incomplete paralysis or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for compensation for tension headaches as secondary to needle trauma to nerve in the left lower jaw under 1151 have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.310 (2019); VAOPGCPREC 8-97 (1997). 2. For the entire period of the appeal, the criteria for a disability in excess of 10 percent for manifestations of needle trauma to nerve in left lower jaw have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.20, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8205 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to June 1995. By way of history, in a July 2017 rating decision, service connection was granted for the Veteran’s claim for compensation for needle trauma to nerve in the left jaw area pursuant to 38 U.S.C. § 1151 (2012). A 10 percent rating was assigned, effective the date of the claim – February 14, 2017. The Veteran contends that an increased rating is warranted. He also claims that he has tension headaches secondary to the needle trauma to nerve in the left jaw. 1. Entitlement to Service Connection for Tension Headaches as Secondary to Needle Trauma to Nerve in the Left Lower Jaw Area Compensated under 38 U.S.C. § 1151 is denied. Disability compensation may be paid pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310 for disability which is proximately due to or the result of a disability for which compensation is already payable under 38 U.S.C. § 1151. That is, compensation may be paid pursuant to 38 C.F.R. § 3.310 for disability which is proximately due to or the result of a condition which is already compensated under 38 U.S.C. § 1151 “as if” it was service connected. VAOPGCPREC 8-97 (1997). Review of the record reflects that the Veteran was seen in March 2011 for complaints (heavy snoring and shortness of breath) to include headaches. Later that month, it was noted that he complained of mood swings, night sweats, headaches, and difficulty sleeping. It was believed that his headaches were related to his problems sleeping. VA records also show that the Veteran was seen in November 2012 for severe headaches when seen for elevated blood pressure. As noted above, he is now service-connected for needle trauma to nerve in the left lower jaw which occurred during a VA procedure in October 2015. Since that time, the record reflects treatment by VA for ongoing dental issues, as well as for other conditions. Chronic tension headaches were not indicated but reported upon VA examination in May 2017. Specifically, when examined by VA in May 2017, to address whether nerve damage in the left jaw area resulted due to the VA procedure, it was found that it was more likely than not, that such damage did result. Service connection for residuals of needle trauma to nerve in left jaw area pursuant to 38 U.S.C. § 1151 was granted. The examiner noted that the Veteran’s tension headaches were limited to one side of the head (left), and he did not experience any associated non-headache (e.g., nausea, vomiting, sensitivity to light) symptoms. His treatment plan did not include taking medication for the condition. While it was noted that the Veteran had tension headaches, the VA examiner opined that such were less likely than not related to needle trauma to the left jaw. For rationale, it was pointed out that the record showed occasional complaints of headaches (as noted above) in the years prior to the October 2015 procedure. Moreover, he did not report headaches, tension or otherwise, in the dental treatment reports dated subsequent to the treatment in question in 2015. Specifically, it was noted that he complained of many other conditions, to include loss of feeling in the jaw area and lips, problems eating, sleeping difficulty, and inability to distinguish between hot or cold, but not headaches. Moreover, the evidence did not show recent complaints of or treatment for headaches. The Veteran’s complaints of tension headaches were described as a “separate condition.” In this case, there simply is no medical evidence of record establishing a link between needle trauma to nerve in the left lower jaw and tension headaches. It is also noted that while the examiner’s opinion did not specifically address aggravation of tension headaches due to needle trauma to the nerve area of the left jaw, given the medical findings showing only minor manifestations associated with headaches and the general lack of complaints of such over the years when being seen for residuals of dental trauma, the Board concludes that remand for additional opinion regarding aggravation is not necessary. The Board acknowledges the Veteran’s belief that he has tension headaches associated with needle trauma to nerve in the left jaw area, but he is not competent to assess a chronic headache disorder or relate such to his nerve injury in the left jaw. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no reasonable doubt to be resolved in the Veteran’s favor, and the claim is denied. Gilbert v. Derwinski, 1 Vet. Ap. 49 (1990). 2. Entitlement to an Initial Rating in Excess of 10 Percent for Needle Trauma to Nerve in the Left Lower Jaw is denied. The service-connected disorder is rated at 10 percent disabling pursuant to 4.124a, DC 8205 (2019). Under that code, moderate incomplete paralysis of the fifth (trigeminal) cranial nerve is rated as 10 percent disabling; severe incomplete paralysis is rated 20 percent disabling; and complete paralysis is rated 50 percent disabling. Id. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as “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 (2019). In rating cranial nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Similarly, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The relevant evidence of record includes VA examination in May 2017. At that time, moderate incomplete cranial nerve V (trigeminal) was noted. Additional VA examination was conducted in April 2019. The Veteran reported pain upon palpation of the pterygoid muscle. There was pain with excursive movement to the right. Additionally, there was an area of numbness in the chin area, leip, and unattached tissue of area #23 and #24. The Veteran reported feeling pressure with probing. The pain and numbness in the lower face was described as moderate. Muscle strength was normal. Cranial nerves (V, VII, IX, X, XI, and XII) were all normal. Sensory examination of cranial nerve V was normal in the upper and mid face, but there was decrease sensory in the lower face (on the left). There were no other cranial nerves affected upon sensory evaluation. The examiner noted that there was mild reduction in light touch, temperature and pin prick in the left V3 division of cranial nerve V. No other cranial nerve deficits were noted. The pertinent evidence shows mild/moderate incomplete paralysis in cranial nerve V. It does not show severe incomplete or complete paralysis to warrant a rating in excess of 10 percent. The examiner also noted that the Veteran’s nerve damage did not impact his ability to work. The weight of the evidence does not show or more nearly approximate severe incomplete paralysis or impairment or complete paralysis of the trigeminal nerve. As such, the Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent under Code 8205 for the trigeminal neuropathy. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for an increased rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, supra. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.