Citation Nr: 21000438 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-17 273 DATE: January 5, 2021 ORDER Entitlement to a disability rating greater than 10 percent for residuals of Bell’s palsy, seventh cranial nerve (right) is denied. Entitlement to a disability rating greater than 10 percent for residuals of Bell’s palsy, seventh cranial nerve (left) is denied. REMANDED Entitlement to a compensable disability rating for Graves’ disease is remanded. Entitlement to a separate disability rating for orbitopathy as secondary to service-connected Graves’ disease is remanded. Entitlement to a separate disability rating for bradycardia, as secondary to service-connected Graves’ disease is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's neuralgia of the seventh cranial nerve (right) has been manifested by no more than moderate incomplete paralysis 2. The Veteran's neuralgia of the seventh cranial nerve (left) has been manifested by no more than moderate incomplete paralysis CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of Bell’s palsy, seventh cranial nerve (right), are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8207. 2. The criteria for a rating in excess of 10 percent for residuals of Bell’s palsy, seventh cranial nerve (left) are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8207 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1997 to September 2003 and then from September 2006 to May 2008. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of the Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal was before the Board in March 2017 and was remanded for issuance of a Supplemental Statement of the Case (SSOC) and for further evidentiary development. In February 2020, the Board again remanded the appeal for updated VA examinations. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the file. During the pendency of the appeal, in an April 2020 rating decision, the RO granted service connection for residuals of Bell’s palsy, seventh cranial nerve (left) and increased the disability rating from zero to 10 percent for residuals of Bell’s palsy, seventh cranial nerve (right). The Board notes that these did not constitute a full grant of the benefits sought. Accordingly, the Veteran’s increased rating appeal for her residuals of Bell palsy, remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The appeal has returned to the Board for further appellate consideration. The Board notes that Veteran has articulated that her service-connected disabilities render her unemployable. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Thus, the Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and is, thus, properly before the Board. The issue of TDIU is discussed below in the remand section. 1. Entitlement to a disability rating greater than 10 percent residuals of Bell’s palsy, seventh cranial nerve (right) 2. Entitlement to a disability rating greater than 10 percent for residuals of Bell’s palsy, seventh cranial nerve (left) The Veteran is pursuing ratings greater than 10 percent for residuals of Bell’s palsy, seventh cranial nerve (right and left respectively). As these appeals require similar analyses, they will be addressed simultaneously. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns diagnostic codes (DCs) to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2016). In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). The Veteran is seeking a rating in excess of 10 percent for her right and left neuralgia of the seventh cranial nerve respectively. The disabilities are rated pursuant to 38 C.F.R. § 4.124a, DC 8207, which contemplates paralysis of the cranial nerves. Under DC 8207, the minimum 10 percent rating is warranted for moderate incomplete paralysis of the cranial nerves. A 20 percent rating is warranted for severe incomplete paralysis of the cranial nerves nerve. The maximum 30 percent rating is warranted for complete paralysis of the cranial nerves. Id. The evidence of record does not reveal significant medical treatment sought or received for the Veteran’s seventh cranial nerve issues. The Veteran did undergo a VA examination of her seventh cranial nerve in March 2009. It was noted that the Veteran has a history of Bell’s palsy. The examiner indicated the disability was manifested by very minimal residuals. See March 2009 VA Examination. The Veteran was afforded a VA Cranial Nerves Diseases examination in February 2016. The examiner noted that the Bell’s palsy was resolved with no residuals. See February 2016 C&P Examination. The Board accords this examination less probative weight as the examiner did not review the Veteran’s entire records which documents evidence of ongoing symptomatology. The Veteran was afforded another VA Cranial Nerves Diseases examination in March 2020. The diagnosis was Bell’s palsy with very minimal residuals affecting the seventh cranial nerve. The examiner noted that the severity of the of the cranial nerve was incomplete-moderate. The examiner further remarked that there was a worsening of the Veteran’s symptoms, however no change to the service connected diagnosis and no additional diagnoses were rendered. See March 2020 C&P Examination. The Board accords this examination great probative value. The Board has not overlooked the Veteran's lay statements with regard to her symptoms. However, while she is competent to report on factual matters of which she has firsthand knowledge, and while the Board finds that her reports concerning symptomatology have been credible, there is no basis for concluding that a layperson such as the Veteran is competent to determine the nature, extent, and severity of her cranial nerve disability, in the absence of specialized medical training; in this case, it is around questions of the disability's nature, extent, and severity that the increased rating claim turns. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the objective medical findings discussed above constitute the most probative evidence of record on the question of entitlement to an increased rating for neuralgia of the seventh cranial nerve; the evidence firmly demonstrates the Veteran is beset by no more than moderate incomplete paralysis of the seventh cranial nerves. Accordingly, the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for right and left neuralgia of the seventh cranial nerve respectively, as the record only demonstrates a moderate impairment due to the disability. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable disability rating for Graves’ disease is remanded. 2. Entitlement to a separate disability rating for orbitopathy as secondary to service-connected Graves’ disease is remanded. 3. Entitlement to a separate disability rating for bradycardia, as secondary to service-connected Graves’ disease is remanded. The Board regrets additional delay but cannot make a final determination on the Veteran’s Graves’ disease, until further development to include an adequate VA examination is obtained. Grave's disease causes the thyroid gland to produce an excess of thyroid hormone. The Veteran was initially diagnosed with Grave's disease in January 2008 and subsequently received radiation treatment with iodine to kill her thyroid hormone-producing cells. The Veteran has taken thyroid supplements since that time to ensure that she has sufficient thyroid hormone in her system. At the February 2016 VA Thyroid and Parathyroid Conditions examination, the examiner noted that the Veteran’s Graves’ disease had been resolved with treatment but that the Veteran has a diagnosis of hypothyroidism as residual of RAI treatment for Graves. See February 2016 C&P Examination. At the March 2020 VA Thyroid and Parathyroid Conditions examination, the examiner noted that the Veteran does not have signs, or symptoms attributable to a hypothyroid condition. The examiner further remarked that there was no change in the service connected diagnosis of hyperthyroidism and no additional diagnoses were rendered. See March 2020 C&P Examination. VA treatment records show that the Veteran’s thyroid production is monitored periodically, and that the dosage of her thyroid supplements are adjusted accordingly when necessary. See CAPRI. The VA's regulatory rating schedule provides two different Diagnostic Codes for thyroid imbalance: Diagnostic Code 7900 for hyperthyroidism and Diagnostic Code 7903 for hyperthyroidism. The rating criteria in each Code are different, as the impairment arising from too much thyroid hormone is entirely different than the impairment arising from too little thyroid hormone. Because Grave's disease causes the body to produce excess thyroid hormone, the RO has rated the Veteran using the provisions of Diagnostic Code 7900. However, the Board finds that this analysis is too facile and thus inaccurate. Because the Veteran underwent radiation treatment to reduce her thyroid hormone production, she is now in fact, hypothyroid. The fact that she requires thyroid supplements confirms that her thyroid gland under-produces thyroid hormone, rather than over-produces it, as was the case prior to the radiation treatment in 2009. As set forth above, the assignment of a particular Diagnostic Code is completely dependent on the facts of a particular case. In this case, given the facts as set forth above, the Veteran's Grave's disease should more properly be described as “hyperthyroidism and hypothyroidism” and should be rated under the provisions of Diagnostic Codes 7900 and 7903 respectively, depending on the period under review. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Under Diagnostic Code 7903, hypothyroidism manifested by cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness is rated as 100 percent disabling. Hypothyroidism manifested by muscular weakness, mental disturbance, and weight gain is rated as 60 percent disabling. Hypothyroidism manifested by fatigability, constipation, and mental sluggishness is rated as 30 percent disabling. Hypothyroidism manifested by fatigability, or when continuous medication is required for control, is rated as 10 percent disabling. 38 C.F.R. § 4.119, Diagnostic Code 7903. Given that the Veteran’s disability may result in staged ratings and a change in the Diagnostic Codes, the Board finds that having a complete picture of the Veteran’s disability would be helpful. The March 2020 VA examination is inadequate as the examiner only identified residuals of hyperthyroidism and noted no instances of hypothyroidism. The Veteran’s medical treatment records indicate a possible diagnosis of bradycardia. As this is a symptom which would support the award of a higher disability rating under Diagnostic Code 7903, the RO will need to explore whether the Veteran's bradycardia would be more properly rated as a separate entity, or whether it would be more properly rated as part of her hypothyroidism, so as to avoid compensating the Veteran twice for the same symptoms. 38 C.F.R. § 4.14. Therefore, upon remand, as part of the process of re-rating the Veteran's Graves’ disease, all appropriate development should be accomplished to arrive at an accurate determination. With regards to entitlement to a separate rating for orbitopathy, a February 2017 VA examination conducted for the purpose of identifying whether the Veteran's orbitopathy was linked to Grave's disease yielded a positive nexus opinion. The examiner’s rationale was that records specifically state that Veteran was diagnosed with hyperthyroidism, specifically Grave's disease and was treated for this in the time period of 2007-2008. The examiner continued that Graves’ disease is treated by radioactive iodine, which renders the patient hypothyroid for the rest of their life and that the exophthalmos and orbitopathy can present years later regardless of treatment and can progress with multiple manifestations. See February 2017 C&P Examination. The Board determines that the evidence is not clear as to whether the Veteran’s eye and heart condition may be related to the Veteran's history of Grave's disease and her current hypothyroid. Therefore, an adequate medical examination should be obtained to support a fully-informed decision regarding the Veteran’s current disability picture. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has asserted in various lay statements that her disabilities affect her employment. Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from common etiology will be considered as one disability. The Veteran's employment history, educational and vocational attainment as well as her particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the Veteran does not currently have a single service-connected disability ratable at 40 percent or more, although that might change pending the outcome of the issues that are being remanded. The Veteran has not yet been provided adequate notice of the requirements to substantiate a claim for TDIU. Upon remand, the RO should accomplish all procedural and evidentiary development necessary to adjudicate the issue of entitlement to a TDIU, to include obtaining complete education and employment histories, prior to rendering a determination as to whether the Veteran's service-connected disabilities combine to produce unemployability. As the appeal is being remanded, the Veteran's VA treatment records should be updated for the claims file. If the Veteran is receiving private medical care in addition to VA care, these records should be obtained in support of his appeals as well. The matters are REMANDED for the following action: 1. Issue a notice letter to the Veteran concerning a claim for a TDIU. Additionally, ask her to fully complete a VA Form 21-8940, [Veteran's Application for Increased Compensation Based on Unemployability] and any other evidentiary development which may become apparent; prior to performing an initial adjudication regarding her claim for TDIU. 2. Schedule the Veteran for an examination by a qualified clinician to determine the current severity of her service-connected Grave's disease, post-radiation treatment. All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria set forth in Diagnostic Code 7903. To the extent possible, the examiner should identify any symptoms (eye or heart conditions) and functional impairments due to Grave's disease. If it is not possible to provide an opinion regarding symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, based on the other evidence of record and the Veteran's statements. Any other evidentiary development deemed necessary to accurately rate the Veteran's Graves’ disease should be accomplished. 3. Schedule the Veteran for VA examinations with an appropriate clinician, to determine whether the Veteran's orbitopathy and bradycardia are more, less, or equally likely to be related to or proximately caused by Grave's disease. If a negative conclusion is reached, then the clinician should address whether the Veteran's orbitopathy and bradycardia are aggravated beyond their natural progression by the Grave's disease. A complete rationale for the conclusions reached should be fully explained. If the examiner deems that further testing and/or a clinical examination would be helpful in resolving this question, then such testing/examination should be scheduled. 4. After accomplishing the development requested above, and readjudicating the other appeal issues, adjudicate the issue of entitlement to a TDIU. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.