Citation Nr: 20021344 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-38 824 DATE: March 25, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected trigeminal neuralgia is denied. REMAND Entitlement to service connection for a lumbar spine disability is remanded. FINDING OF FACT The Veteran’s service-connected trigeminal neuralgia manifests moderate, incomplete paralysis. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for service-connected trigeminal neuralgia have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124, 4.124a, Diagnostic Codes (DCs) 8205, 8405. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran originally was awarded service connection for trigeminal neuralgia in a November 1987 rating decision; he was assigned a noncompensable rating effective September 22, 1987. In March 2012, the Veteran filed the instant increased rating claim, and the December 2012 decision now on appeal continued his noncompensable rating; the Veteran timely appealed in March 2013. In an August 2014 rating decision, however, the Veteran was awarded a 10 percent disability rating effective March 16, 2012—the date he filed his claim. In a November 2018 decision, the Board denied this claim and a claim for service connection for a lumbar spine disability (the latter issue will be discussed more fully below in the remand portion). The Veteran elected to appeal the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and the Office of the General Counsel for VA (collectively referred to as “the Parties”) resolved that appeal by way of a Joint Motion for Remand (JMR). The Parties agreed that vacatur and remand was appropriate for both claims. With respect to the increased rating claim, the Board committed two errors. To start, it failed to provide adequate reasons and bases for rating the Veteran under DC 8305 (neuritis) when he previously had been rated under DC 8405 (neuralgia), especially given that an individual with tic douloureux (a condition noted in the Veteran’s service treatment records (STRs)) may be rated up to complete paralysis. September 3, 2019, JMR at 3–4. Furthermore, the Board did not provide adequate reasons or bases for why it rated the Veteran’s disability as “moderate” rather than “severe” without explaining what those terms mean in this context. Id. at 4. Thus, it is with this backdrop that the Board now readdress the increased rating claim. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Disability in this field is ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating disability from the conditions in the preceding sentence refer to the appropriate schedule. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Disability of the fifth (trigeminal) cranial nerve can be rated as complete paralysis (50 percent rating), incomplete, severe paralysis (30 percent rating), or incomplete, moderate paralysis (10 percent rating). 38 C.F.R. § 4.124a, DCs 8205. 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. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124, DC 8405. A June 2012 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The examiner noted that the Veteran experiences severe sensation of lacinating or electric shock pain on the right side. There also was mild involuntary painless facial twitching or spasm but no weakness or paralysis of facial muscles. Sensory examination revealed no pain in the forehead, cheek, chin, or entire side of right face; light touch was normal. Motor examination was normal; there was no atrophy; and examination of muscles of facial expression was normal. The Veteran was diagnosed with neuralgia resulting in right-side facial pain. Private treatment records from December 2013 show that the Veteran was recommended therapy but that he opted to defer until his next flare-up; he started having pain three–four weeks ago, which he now states is severe (9/10). A July 2014 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The Veteran was diagnosed with trigeminal neuralgia. The veteran was noted to have constant pain, at times excruciating, at the mid and lower levels of the right side of his face. Intermittent pain at mid-right-side face is severe. There is moderate difficulty chewing and mild difficulty speaking. All cranial nerves tested had normal muscle strength. Sensory examination of the upper face and forehead revealed normal findings. Overall, the examiner noted the Veteran to be experiencing moderate, incomplete paralysis on the right side of his face. In October 2014, the Veteran’s private physician evaluated his trigeminal neuralgia, which was described as sharp/stabbing pain at levels of 6/10 with pain being 10/10 for three days out of a month. The pain typically lasts one–two seconds and occurs six times per day. Later that month, the Veteran underwent a nerve-block procedure. Private records from June 2015 show that the Veteran described his pain as electrical and stabbing in nature, which lasts minutes. While evaluated by Dr. M.M., the Veteran had at least three episodes of this pain, but the episodes lasted only seconds. The Veteran reported ten episodes per day as typical. The Court faulted the Board for failing to provide an adequate statement of reasons and bases for why it rated the Veteran under DC 8305 (neuritis) as opposed to DC 8405 (neuralgia). Indeed, as the record reflects, the Veteran never has been diagnosed or treated for neuritis of the fifth cranial nerve; rather, the records indicate that the Veteran has a diagnosis consistent with neuralgia. Thus, the Board will continue to rate the Veteran under DC 8405, which requires application of the rating criteria under DC 8205. With respect to the rating itself, the Board finds that it need not address the Court’s concern and define the terms “moderate” and “severe.” As the regulations make clear, cranial neuralgia is to be rated with a maximum equal to moderate, incomplete paralysis. See 38 C.F.R. § 4.124. Under DC 8205, moderate, incomplete paralysis warrants a 10 percent disability rating. To be sure, while the Veteran reports, and the medical evidence shows, that he has pain on the right side of his face, the records do not reflect that he experiences any paralysis greater than moderate, incomplete paralysis. The June 2012 VA examination report indicates that there was no paralysis, and the July 2014 examination revealed moderate, incomplete paralysis. Private treatment records are silent for any discussion about paralysis. Thus, the Board finds that the evidence of record is in line with, and conforms to, the regulations for neuralgia. While the Veteran’s STRs mention a diagnosis of tic douloureux, the Board notes that such records are not relevant. None of the Veteran’s private treatment records or VA medical center (VAMC) records show a current diagnosis of tic douloureux. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. See Francisco, 7 Vet. App. 55. Thus, the Board finds that the Veteran’s current 10 percent rating for moderate, incomplete neuralgia of his trigeminal cranial nerve is appropriate, and his appeal is denied. See 38 C.F.R. §§ 4.124, 4.124a, DCs 8205, 405. REASONS FOR REMAND With respect to the issue of service connection for the Veteran’s lumbar spine, the Parties agreed that VA failed its duty to assist to ensure that medical records from the VistA database were uploaded to the claims file, namely records from Springwood Lake Family Medicine. See JMR at 1–2. Thus, remand is required to obtain these records and then readjudicate the Veteran’s claim. See 38 U.S.C. § 5103A(b)(1); 38 C.F.R. §§ 3.159(c)(1), 20.6904(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send the Veteran the necessary forms to authorize VA to obtain the Springwood Lake Family Medicine records on the Veteran’s behalf. If the Veteran executes these forms, then make reasonable attempts to obtain those records. Such attempts must be documented in the claims file. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claim. If the claim remains denied, then issue to the Veteran a Supplemental Statement of the Case. After allowing an appropriate amount of time for response from the Veteran, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the Court must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate 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.