Citation Nr: 21001119 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-01 093 DATE: January 7, 2021 ORDER Entitlement to a rating in excess of 10 percent for traumatic injury, third division of the trigeminal nerve, to include extraschedular consideration, is denied. REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD), right knee, is remanded. FINDING OF FACT The Veteran’s traumatic injury, third division of the trigeminal nerve, was manifested by symptoms that were no more than moderate. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for traumatic injury, third division of the trigeminal nerve, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8305 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from January 1991 to May 1991 and January 1992 to February 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018. A transcript of that hearing has been associated with the claims file. By way of history, the Veteran’s increased rating claims for a right knee disability and trigeminal nerve injury were denied in a July 2019 Board decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion of the parties, vacated the Board’s decision, and remanded the case to the Board for action consistent with the Joint Motion. The Veteran has asserted that her traumatic injury, third division of the trigeminal nerve (“nerve disability”), is worse than that contemplated by the currently assigned rating. In September 2009, a VA neurology consultation indicated that the Veteran had normal cranial nerves. At a September 2010 VA neurology consultation, the Veteran described experiencing numbness along with intermittent pins and needles sensation in her right face, cheek, lower and upper jaw region. Occasionally, the numbness extended to the right side of her body. She added that she occasionally experienced headache pain over her right temple. She denied any lancinating electrical shock type pain, unilateral weakness, visual impairment, double vision, slurred speech, and difficulty in chewing and swallowing. Upon physical evaluation, the Veteran’s facial sensation was impaired to cold temperature and light touch over the right maxillary and mandibular nerve distributions. Additionally, vibration and pain sensation were impaired on the right side. Palatal, sternomastoid, and trapezius functions were normal. In October 2010, the Veteran was afforded a VA cranial nerve examination. She experienced sensory impairment with decreased sensation to the right side of her face. She reported that she was unable to socially interact normally when it involved food or drink. The examiner determined that the Veteran had neuralgia affecting her right trigeminal nerve. During a follow-up in December 2010, the September 2010 VA neurologist observed that the Veteran had impaired facial sensation impaired over the right half of her face. He diagnosed right-sided sensory impairment, non-anatomical in nature, right atypical facial pain, and fibromyalgia. In September 2012, the Veteran underwent a VA cranial nerve examination. She reported no feeling on the right side of her face, specifically in her cheek area. Her muscle strength was normal. However, sensation to light touch was absent in the right, mid- and lower face. The examiner determined that the Veteran had moderate, incomplete paralysis involving the right trigeminal nerve. The Veteran had a VA cranial nerve examination in January 2016. She complained of numbness in the right side of her jaw. She denied any defects in taste or smell. The examiner indicated that the Veteran had mild intermittent pain and paresthesias/dysesthesias in her right, lower face, side of mouth, and throat. The examiner noted that the Veteran had moderate numbness in her right, lower face, side of mouth, and throat. Additionally, the Veteran had mild difficulty chewing, speaking, and increased salivation. Her muscle strength was mildly impaired. Sensation to light touch was decreased in her right, lower face. The examiner determined that the Veteran had moderate, incomplete paralysis involving the right trigeminal nerve. In March 2018, the Veteran was provided an additional VA cranial nerve examination. The examiner concurred with the September/December 2010 VA neurologist that the Veteran had right sensory impairment, non-anatomical in nature. He found that the distribution of the Veteran’s numbness did not fit distribution specific to the third division of trigeminal nerve, concluding that the Veteran’s trigeminal nerve was not affected. Additionally, he stated that the Veteran’s motor function was intact with normal muscle strength. However, sensation to light touch was decreased in the Veteran’s right, mid- and lower face. Further review of the record showed no indication that the Veteran’s symptomatology is manifestly different from the findings discussed above except that she reportedly had periodic locking of the jaw. In November 2020, she added that her symptoms remained the same. Based on the foregoing evidence, the Board finds that the Veteran is not entitled to a higher rating for her nerve disability. In this regard, the September 2012 and January 2016 VA examiners found that the Veteran’s nerve disability was moderate. Although the January 2016 VA examiner indicated that the Veteran had mildly impaired muscle strength along with difficulty chewing, speaking, and increased salivation, the Board finds no additional medical evidence of record establishing that her symptomatology was more than sensory. Namely, the September/December 2010 VA neurologist specifically noted that the Veteran did not have any unilateral weakness, slurred speech, or difficulty in chewing and swallowing. Additionally, he found palatal, sternomastoid, and trapezius functions were normal. Further, the Board observes that the Veteran’s speech, chewing, and drinking, were characterized as normal throughout her VA treatment records. There were no private or VA medical records showing that the Veteran had problems with locking of her jaw or salivation. Moreover, the March 2018 VA examiner agreed with the September/December 2010 VA neurologist that the Veteran had no more than right sensory impairment, non-anatomical in nature. Hence, the Board finds the competent medical evidence of record more probative on whether the Veteran’s symptoms were more than sensory. Moreover, the Board finds that there is no evidence showing that the Veteran’s disability picture is exceptional or unusual to require an extraschedular evaluation. Specifically, the Veteran’s difficulty drinking, chewing, and speaking; increased salivation; and periodic locking of the jaw did not result in frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321 (2019); Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for traumatic injury, third division of the trigeminal nerve, is not warranted throughout the appeal period. There is no doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b) (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran was last afforded a VA examination for her service-connected right knee DJD in March 2016. In November 2020, she reported that the severity of her symptoms had increased since that time. Therefore, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from her DJD, right knee. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from her service-connected right knee degenerative joint disease. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page)   4. Then, readjudicate the remaining claim on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.