Citation Nr: 21071928 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 13-33 861 DATE: December 1, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for migraines, including migraine variants, associated with residuals of a brain tumor surgery since June 23, 2021, is denied. An initial 10 percent, but not higher, disability rating for migraines, including migraine variants, associated with residuals of a brain tumor surgery is granted effective from April 25, 2018, to June 22, 2021, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial compensable disability rating for migraines, including migraine variants, associated with residuals of a brain tumor surgery prior to April 25, 2018, is denied. Entitlement to an initial disability rating in excess of 10 percent for deviated nasal septum associated with residuals of a brain tumor surgery is denied. Entitlement to an initial disability rating in excess of 10 percent since June 23, 2021, for allergic rhinitis associated with residuals of a brain tumor surgery is denied. Entitlement to an initial compensable disability rating prior to June 23, 2021, for allergic rhinitis associated with residuals of a brain tumor surgery is denied. Entitlement to an initial compensable disability rating for chronic sinusitis associated with residuals of a brain tumor surgery is denied. Entitlement to an initial disability rating in excess of 10 percent for vertigo of central origin as a residual of a brain tumor surgery is denied. Entitlement to an initial disability rating in excess of 10 percent for trismus associated with residuals of a brain tumor surgery is denied. Entitlement to an initial disability rating in excess of 10 percent for blepharospasm involving a partial paralysis of the left fifth facial dermatome associated with residuals of a brain tumor surgery is denied. Entitlement to an initial disability rating in excess of 10 percent for blepharospasm involving a partial paralysis of the left seventh facial dermatome associated with residuals of a brain tumor surgery is denied. Entitlement to an initial separate 10 percent disability rating for disfigurement from blepharospasm involving ptosis associated with residuals of a brain tumor surgery is granted effective from March 6, 2012, subject to the laws and regulations governing the payment of monetary benefits. The retroactive reduction in the evaluation for residuals of a brain tumor surgery under Diagnostic Code 8003 effective March 6, 2012, was not proper; restoration of a separate 10 percent disability rating for residuals of a brain tumor surgery under Diagnostic Code 8003 is granted effective March 6, 2012, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess of 10 percent for residuals of a brain tumor surgery is denied. FINDINGS OF FACT 1. The weight of evidence is against a finding that since June 23, 2021, migraine headaches have been manifested by characteristic prostrating attacks that occur on average once a month. 2. The evidence is in equipoise as to whether from April 25, 2018, to June 22, 2021, migraine headaches were manifested by characteristic prostrating attacks that occurred on average once a month. 3. The weight of evidence is against a finding that prior to April 25, 2018, migraine headaches were manifested by characteristic prostrating attacks that occur on average once every two months. 4. The Veteran is receiving the maximum schedular rating for deviated nasal septum. 5. The weight of evidence is against a finding that since June 23, 2021, the allergic rhinitis has been manifested by polyps. 6. The weight of evidence is against a finding that prior to June 23, 2021, the allergic rhinitis was manifested by greater than 50 percent obstruction of nasal passages on both sides or complete obstruction of one side. 7. The weight of evidence is against a finding that since March 6, 2012, the chronic sinusitis has been manifested by manifested by one or two incapacitating episodes a year or three to six non-incapacitating episodes a year. 8. The weight of evidence is against a finding that since March 6, 2012, the vertigo of central origin has been manifested by dizziness and occasional staggering. 9. The weight of evidence is against a finding that since March 6, 2012, trismus has been manifested by interincisal distance limited to less than 30 millimeters (mm) or that since September 10, 2017, trismus has been manifested by dietary restrictions to mechanically altered foods. 10. The weight of evidence is against a finding that since March 6, 2012, the blepharospasm involving a partial paralysis of the left fifth facial dermatome has been manifested by severe incomplete paralysis of the left fifth (trigeminal) cranial nerve. 11. The weight of evidence is against a finding that since March 6, 2012, the blepharospasm involving a partial paralysis of the left seventh facial dermatome has been manifested by severe incomplete paralysis of the left seventh (facial) cranial nerve. 12. The evidence is in equipoise as to whether since March 6, 2012, the disfigurement from the blepharospasm with ptosis more nearly approximates skin texture abnormal in an area exceeding six square inches. 13. In an October 2020 rating decision, a RO found that there was clear and unmistakable error (CUE) in an August 2012 rating decision assigning a separate 10 percent disability rating for residuals of a brain tumor surgery under Diagnostic Code 8003 effective March 6, 2012, and retroactively no longer rated residuals of a brain tumor surgery as a separate 10 percent disability rating under Diagnostic Code 8003 alone effective March 6, 2012. 14. The August 2012 rating decision granted service connection for residuals of a brain tumor surgery effective March 6, 2012, and assigned a 10 percent disability rating under Diagnostic Code 8003 to incorporate all residuals. 15. The August 2012 rating decision granted service connection for a deviated nasal septum, chronic sinusitis, and scars all as secondary to the residuals of a brain tumor surgery and effective March 6, 2012, and assigned a 10 percent disability rating for a deviated nasal septum under Diagnostic Code 6502 and zero percent disability ratings for chronic sinusitis and scars, all effective March 6, 2012. 16. The August 2012 rating decision that assigned an initial 10 percent disability rating for residuals of a brain tumor under Diagnostic Code 8003 effective March 6, 2012, to incorporate all residuals was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. 17. The weight of evidence is against a finding that the Veteran has or has had an active benign brain tumor during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent since June 23, 2021, for migraines, including migraine variants, associated with residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2021). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent disability rating from April 25, 2018, to June 22, 2021, for migraines, including migraine variants, associated with residuals of a brain tumor surgery have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 3. The criteria for an initial compensable disability rating prior to April 25, 2018, for migraines, including migraine variants, associated with residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 4. The criteria for entitlement to an initial disability rating in excess of 10 percent since March 6, 2012, for deviated nasal septum associated with residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.97, Diagnostic Code 6502 (2021). 5. The criteria for entitlement to an initial disability rating in excess of 10 percent since June 23, 2021, for allergic rhinitis associated with residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.97, Diagnostic Code 6522 (2021). 6. The criteria for entitlement to an initial compensable disability rating prior to June 23, 2021, for allergic rhinitis associated with residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.14, 4.97, Diagnostic Code 6522 (2021). 7. The criteria for entitlement to an initial compensable rating since March 6, 2012, for sinusitis associated with residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.97, Diagnostic Code 6513 (2021). 8. The criteria for entitlement to an initial disability rating in excess of 10 percent since March 6, 2012, for vertigo of central origin as a residual of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.87, Diagnostic Code 6204 (2021). 9. The criteria for entitlement to an initial disability rating in excess of 10 percent since March 6, 2012, for trismus as a residual of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905 (2021); 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). 10. The criteria for entitlement to an initial disability rating in excess of 10 percent since March 6, 2012, for blepharospasm involving a partial paralysis of the left fifth facial dermatome associated with residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.124a, Diagnostic Code 8205 (2021). 11. The criteria for entitlement to an initial disability rating in excess of 10 percent since March 6, 2012, for blepharospasm involving a partial paralysis of the left seventh facial dermatome associated with residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.124a, Diagnostic Code 8207 (2021). 12. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to an initial separate 10 percent disability rating since March 6, 2012, for disfigurement from blepharospasm involving ptosis associated with residuals of a brain tumor surgery have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.3, 4.79, Diagnostic Code 6019, 4.118, Diagnostic Code 7800 (2021). 13. The retroactive reduction in the evaluation for residuals of a brain tumor surgery under Diagnostic Code 8003 effective March 6, 2012, was not warranted. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105(a) (2021); 38 C.F.R. § 4.124A, Diagnostic Code 8003 (2012). 14. The criteria for entitlement to an initial disability rating in excess of 10 percent since March 6, 2012, for residuals of a brain tumor surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.124a, Diagnostic Code 8003 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1974 to August 1978 and from April 1982 to October 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 (granting service connection for residuals of a brain tumor, deviated nasal septum, and chronic sinusitis), October 2012 (grant of service connection for blepharospasm involving paralysis of the fifth and seventh facial dermatomes and vertigo), November 2012 (grant of service connection for trismus), June 2019 (grant of service connection for migraines and allergic rhinitis) and October 2020 (finding of CUE in the August 2012 rating decision) rating decisions of a Department of Veterans Affairs (VA) regional office (RO). In November 2016, the Veteran and his spouse testified at a hearing held at a RO before a decision review officer and a transcript of that hearing has been associated with the electronic claims file. In April 2017, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge and a transcript of the hearing has been associated with the electronic claims file. In January 2018 and September 2019, the Board remanded the issues of entitlement to an initial disability rating in excess of 10 percent for benign brain tumor residuals, entitlement to an initial disability rating in excess of 10 percent or positional vertigo, and entitlement to an initial compensable rating for chronic sinusitis. In January 2021, the Board remanded the issues of entitlement to an initial disability rating in excess of 10 percent for vertigo of central origin, entitlement to an initial disability rating in excess of 10 percent for deviated nasal septum, entitlement to an initial compensable rating for chronic sinusitis, entitlement to an initial compensable disability rating for allergic rhinitis, entitlement to an initial disability rating in excess of 10 percent for blepharospasms involving partial paralysis of the fifth facial dermatome entitlement to an initial disability rating in excess of 10 percent for blepharospasm involving partial paralysis of the seventh facial dermatome, entitlement to initial disability rating in excess of 10 percent for trismus, and entitlement to an initial compensable rating for migraines. In a July 2021 rating decision, the RO assigned an initial 10 percent disability rating for migraines effective June 23, 2021, and an initial 10 percent disability rating for allergic rhinitis effective June 23, 2021. As these two disability ratings are not the maximum ratings, these claims remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In the August 2012 rating decision, the RO granted service connection for residuals of brain tumor surgery and assigned a 10 percent disability rating under Diagnostic Code 8003. In the October 2012 rating decision, the RO granted service connection for vertigo as a residual of the brain tumor surgery and assigned a 10 percent disability rating under Diagnostic Code 6204. In January 2018 and September 2019, the Board remanded the issues of entitlement to an initial disability rating in excess of 10 percent for benign brain tumor residuals under Diagnostic Code 8003 and entitlement to an initial disability rating in excess of 10 percent for positional vertigo. In the October 2020 rating decision, the RO found that there was CUE in the August 2012 rating decision assigning a separate 10 percent disability rating for residuals of a brain tumor surgery under Diagnostic Code 8003 effective March 6, 2012, and retroactively no longer rated residuals of a brain tumor surgery as a separate 10 percent disability rating under Diagnostic Code 8003 alone to incorporate all residuals effective March 6, 2012. The RO then rated the vertigo as 10 percent disabling under Diagnostic Code 8003-6204 effective March 6, 2012. This rating decision results in a retroactive reduction in compensation from 50 percent disabling to 40 percent disabling effective March 6, 2012. As the Board already had jurisdiction of the issue of entitlement to an initial disability rating in excess of 10 percent for residuals of brain tumor under Diagnostic Code 8003 alone, the issue of the retroactive termination of a separate 10 percent disability rating under Diagnostic Code 8003 alone is part of the issues on appeal. VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist as to these claims. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating 1. Entitlement to initial disability rating in excess of 10 percent for migraines, including migraine variants, associated with residuals of a brain tumor since June 23, 2021 2. Entitlement to an initial compensable disability rating for migraines, including migraine variants, associated with residuals of a brain tumor from April 25, 2018 to June 22, 2021 3. Entitlement to an initial compensable disability rating for migraines, including migraine variants, associated with residuals of a brain tumor prior to April 25, 2018 Governing law and regulations Where the issues involve the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case respect to the Veteran's claim for an increased initial rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 8100, a 50 percent rating is warranted for migraine headaches manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation requires symptomatology manifested by characteristic prostrating attacks occurring on an average of once per month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." Cf. Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack. According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." The rating criteria also do not define "inadaptability." However, the United States Court of Appeals for Veterans Claims (the Court) noted that nothing in Diagnostic Code 8100 required the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). Analysis In the June 2019 rating decision, a RO granted service connection for migraines, including migraine variants, as secondary to residuals of a brain tumor effective January 15, 2014, and assigned a zero percent disability rating effective that same day. In the July 2021 rating decision, a RO assigned a 10 percent disability rating for migraines effective June 23, 2021, the date of a VA examination report. In April 2014, the Veteran submitted a log showing the number of headaches he has had from 2010 to 2014. A June 2014 VA examination report reflects that the examiner determined that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain. At a July 2016 VA examination, the Veteran reported he has headaches eight to fourteen times a month. The examiner noted that the Veteran has characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner indicated that the frequency of the attacks was less frequent than once every two months. The examiner stated that the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain that is productive of severe economic inadaptability. In a November 2016 addendum, the July 2016 VA examiner stated that while the Veteran's reported symptoms are severe, the objective findings are minimal and inconsistent with severe migraines, to include the Veteran's declining recommended prescribed medication by a neurologist. At the November 2016 hearing, the Veteran testified that he had severe headaches four to five times a month. November 2016 hearing transcript, page 5. At the April 2017 hearing, the Veteran testified that he has headaches three to five times a week or five to ten times a month and that these headaches are incapacitating. April 2017 hearing transcript, pages 6-7. He also testified that there were a few times when he had to stop working because of his headaches. Id. at 8. At an April 24, 2018, VA examination, the Veteran reported that he had headaches once or twice a week that last from a few minutes to a few hours. The examiner noted that the Veteran had characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner indicated that the frequency of the attacks was less frequent than once every two months. The examiner stated that the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain that is productive of severe economic inadaptability. At the June 23, 2021, VA examination, the Veteran reported that he has a headache once every other month for which he does not take medications. The examiner stated that the Veteran has characteristic prostrating attacks of migraine or non-migraine headache pain once every two months. The examiner indicated that the Veteran does not have very prostrating and prolonged attacks of migraine or non-migraine pain that is productive of severe economic inadaptability. The Board notes that the Veteran's reporting of the severity and frequency of his headaches. The Board, however, gives greater weight to the findings in the June 2014, July 2016, April 24, 2018, and June 23, 2021, VA examination reports in determining the frequency of characteristic prostrating attacks of headache pain. The June 23, 2021, VA examination report reflects that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain once a month. The weight of evidence is against a finding that since June 23, 2021, migraine headaches have been manifested by characteristic prostrating attacks that occur on average once a month. Thus, an initial disability rating in excess of 10 percent since June 23, 2021, is not warranted. The June 23, 2021, VA examination report reveals that the Veteran has characteristic prostrating attacks of headache pain once every two months prior to the date of the exam. Hence, there is medical evidence of an increase in disability prior to the date of the June 2021 VA examination. The April 24, 2018, VA examination report reflects that the frequency of the characteristic prostrating attacks of headache pain was less than once every two months. The evidence is in equipoise as to whether from April 25, 2018, to June 22, 2021, migraine headaches were manifested by characteristic prostrating attacks that occur on average once a month. Neither the June 23, 2021, VA examination report nor the April 24, 2018, VA examination report shows that the frequency of the characteristic prostrating attacks of headache pain was occurring on average once a month. Thus, an initial disability rating in excess of 10 percent for the headache disorder for the period from April 25, 2018, to June 22, 2021, is not warranted. As for the period prior to April 25, 2018, the April 2018 and July 2016 VA examiners noted that the frequency of the characteristic prostrating attacks of headache pain was less than once every two months. The June 2014 VA examiner determined that the Veteran does not even have characteristic prostrating attacks of migraine or non-migraine headache pain. The weight of evidence is against a finding that prior to April 25, 2018, migraine headaches were manifested by characteristic prostrating attacks that occur on average once every two months. Accordingly, an initial compensable rating for the headache disorder prior to April 25, 2018, is not warranted. 4. Entitlement to an initial disability rating in excess of 10 percent for deviated nasal septum associated with residuals of a brain tumor 5. Entitlement to an initial disability rating in excess of 10 percent since June 23, 2021, for allergic rhinitis associated with residuals of a brain tumor 6. Entitlement to an initial compensable disability rating prior to June 23, 2021, for allergic rhinitis associated with residuals of a brain tumor 7. Entitlement to an initial compensable rating for chronic sinusitis associated with residuals of a brain tumor Governing law and regulations Ten percent is the maximum schedular rating for deviation of the nasal septum. A 10 percent disability rating is warranted based on a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. Under Diagnostic Code 6522 a 10 percent rating is assigned for allergic or vasomotor rhinitis without polyps when there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction of one side. A 30 percent evaluation is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. Diagnostic Codes 6510 through 6514 pertain to various types of sinusitis, each of which is rated pursuant to a general formula for sinusitis set forth in the rating schedule following Diagnostic Code 6514. This general rating formula for sinusitis applies in all circumstances in which VA is to evaluate the severity of sinusitis, no matter what the particular diagnosis, and is the most appropriate criteria by which to assess any form of sinusitis. Under the general rating formula for sinusitis, encompassing Diagnostic Codes 6510 through 6514, a noncompensable evaluation contemplates sinusitis detected by X-ray only. A 10 percent disability rating is awarded for sinusitis manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is awarded for sinusitis manifested by three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. An incapacitating episode of sinusitis is specifically defined in the regulations as one requiring bed rest and treatment by a physician. 38 C.F.R. § 4.97 (2021). Where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Analysis Deviated nasal septum In the August 2012 rating decision, the RO granted service connection for deviated nasal septum as secondary to residuals of brain tumor surgery effective March 6, 2012, and assigned a 10 percent disability rating effective that same date. The Veteran is receiving the maximum schedular rating for a deviated nasal septum. Thus, a higher schedular rating is not warranted. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Allergic rhinitis In the April 2019 rating decision, a RO granted service connection for allergic rhinitis as secondary to residuals of brain tumor surgery effective April 25, 2018, and assigned a zero percent disability rating effective that same date. In a July 2021 rating decision, a RO assigned a 10 percent disability rating for allergic rhinitis effective June 23, 2021, the date of a VA examination. The June 23, 2021, VA examination report reveals that the Veteran did not have nasal polyps. The weight of evidence is against a finding that since June 23, 2021, the allergic rhinitis has been manifested by polyps. The preponderance of the evidence is against the claim, and it is denied. As for the period prior to June 23, 2021, an April 2018 VA examination report reveals that there were no nasal polyps. There was no greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was not complete obstruction on either side due to rhinitis. The Board notes that the June 23, 2021, VA examination report reveals that there was greater than 50 percent obstruction of the nasal passages on both sides due to rhinitis. To the extent that this examination report suggests that the Veteran had a similar level of obstruction prior to the date of that exam, the Board notes that prior to June 23, 2021, a 10 percent disability rating was assigned under Diagnostic Code 6502 for the deviated nasal septum based on a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side. Therefore, a 10 percent rating prior to June 23, 2021, under Diagnostic Code 6522 would be prohibited under the anti-pyramiding provisions of 38 C.F.R. § 4.14. In essence, the diagnostic codes overlap in ratings based on nasal passage obstruction; therefore, assigning separate ratings under both Diagnostic Code 6502 and Diagnostic Code 6522 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261 (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). Thus, a higher rating is only be warranted for nasal polyps, which would warrant a 30 percent disability rating and was not found on any VA examination. The weight of evidence is against a finding that prior to June 23, 2021, the allergic rhinitis was manifested by greater than 50 percent obstruction of nasal passages on both sides or complete obstruction of one side. The preponderance of the evidence is against the claim, and it is denied. Chronic sinusitis In the August 2012 rating decision, the RO granted service connection for chronic sinusitis as secondary to residuals of the brain tumor surgery effective March 6, 2012, and assigned a zero percent disability rating effective that same date. A June 2012 VA examination report reflects that the examiner did not identify a sinus area affected by the chronic sinusitis. The examiner noted that the sinusitis was manifested by headaches only. The examiner stated that the Veteran did not have any non-incapacitating episodes of sinusitis in the past 12 months or any incapacitating episodes of sinusitis in the past 12 months. A July 2016 VA examination report reflects that the examiner identified the frontal sinuses as that area affected by the chronic sinusitis. The examiner did not indicate that there were any current symptoms attributed to chronic sinusitis. The examiner stated that the Veteran did not have any non-incapacitating episodes of sinusitis in the past 12 months or any incapacitating episodes of sinusitis in the past 12 months. At the November 2016 hearing, the Veteran testified that he has intermittent green purulent discharge from his nose. November 2016 hearing transcript, page 16. At the April 2017 hearing, the representative noted that the Veteran had constant drainage but no crusting or infections. April 2017 hearing transcript. Page 8. An April 2018 VA examination report reflects that the examiner did not identify a sinus area affected by the chronic sinusitis. The examiner noted that the Veteran had episodes of sinusitis but did not identify any current symptoms. The examiner stated that the Veteran did not have any non-incapacitating episodes of sinusitis in the past 12 months or any incapacitating episodes of sinusitis in the past 12 months. The June 2021 VA examination report reflects that the examiner did not make a current diagnosis of sinusitis. The Board places great weight on the VA examination reports showing either no current diagnosis of sinusitis or that the sinusitis was not manifested by non-incapacitating or incapacitating episodes. The weight of evidence is against a finding that since March 6, 2012, the chronic sinusitis has been manifested by manifested by one or two incapacitating episodes a year or three to six non-incapacitating episodes a year. The preponderance of the evidence is against the claim, and it is denied. 8. Entitlement to an initial disability rating in excess of 10 percent for vertigo of central origin as a residual of a brain tumor surgery Governing law and regulations For peripheral vestibular disorders, a 10 percent disability rating is warranted for occasional dizziness and a 30 percent evaluation requires dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. Analysis In the October 2012 rating decision, the RO granted service connection for benign paroxysmal positional vertigo as secondary to residuals of brain tumor surgery effective March 6, 2012, and assigned a zero percent disability rating effective that same date under Diagnostic Code 6204. In a February 2017 rating decision, the RO assigned a 10 percent disability rating for vertigo effective March 6, 2012. In an October 2020 rating decision, the RO reclassified the vertigo as vertigo of central origin. In the October 2020 rating decision, the RO determined that the vertigo is a residual of the brain tumor surgery and not secondary to a residual of the brain tumor surgery. The RO continued the 10 percent disability rating under Diagnostic Code 8003-6204. A September 2012 VA examination report reveals that the Veteran reported intermittent vertigo. The examiner did not indicate that the Veteran had vertigo or staggering. A July 2016 VA traumatic brain injury examination report reflects that there was no evidence of balance difficulty. The examiner stated that there was some evidence of exaggerating symptoms. The examiner noted that the Veteran was leaning to the side during Romberg test. The examiner noted that he demonstrated his difficulty with dizziness after spinning, which appeared to within normal limits especially considering his age. A July 2016 VA examination report shows that the Veteran had vertigo one to four times a month that lasted less than an hour in duration. The examiner did not indicate that the Veteran had staggering. The Romberg test was abnormal or positive for unsteadiness. At the November 2016 hearing, the Veteran testified that he had stumbling. November 2016 hearing transcript, page 11. He stated that testing at VA examinations did not accurately represent real-world situations involving balance. Id. at 12. When asked whether he had problems with staggering, he responded, "not so much staggering." Id. at 13. He added that he leaned toward the left when walking. Id. At the April 2017 hearing, the representative stated that the Veteran staggers. April 2017 hearing transcript, page 4. The Veteran testified that sometimes when he is walking, he gets dizziness and has to lean against a wall to maintain his balance. Id. An April 2018 VA examination report shows that the Veteran had vertigo one to four times a month that lasted less than an hour in duration. The examiner did not indicate that the Veteran had staggering. The Romberg test was normal or negative for unsteadiness. A June 2021 VA examination report shows that the Veteran had vertigo more than once weekly that lasts more than 24 hours. The examiner did not indicate that the Veteran had staggering. The Romberg test was normal or negative for unsteadiness. Though the representative noted at the April 2017 hearing that the Veteran has staggering, the Board places great weight on the Veteran's testimony at the November 2016 hearing that he did not have much staggering. The Board places considerable weight on the VA examination reports showing no staggering and that the majority of the Romberg tests were negative. The Board further notes that the examiner who conducted the July 2016 VA traumatic brain injury examination noted that there was some evidence of exaggerating symptoms. In light of the above, the weight of evidence is against a finding that since March 6, 2012, the vertigo of central origin has been manifested by dizziness and occasional staggering. The preponderance of evidence is against the claim, and it is denied. 9. Entitlement to an initial disability rating in excess of 10 percent for trismus associated with residuals of a brain tumor surgery Governing law and regulations The criteria for ratings under Diagnostic Code 9905 (temporomandibular disorder) were amended, effective September 10, 2017, and the updated schedular criteria are applicable as of that date. See 82 Fed. Reg. 36,080 (August 3, 2017). Under the prior version of Diagnostic Code 9905, a 10 percent rating is warranted when the range of lateral excursion is limited from 0 to 4 millimeters (mm) or the inter-incisal range is limited to 31 to 40 mm. A 20 percent evaluation is applicable when the inter-incisal range is limited to 21 to 30 mm, and a 30 percent rating is for contemplation when the inter-incisal range is limited to 11 to 20 mm. A 40 percent rating is assigned when the inter-incisal range is limited to 0 to 10 mm. A note provided that ratings for limited interincisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). Under the amended version of Diagnostic Code 9905, a 10 percent rating is warranted when range of lateral excursion is limited to between 0 and 4 millimeters, or when interincisal range is limited to 30 to 34 mm without dietary restrictions to mechanically altered foods. Ratings in excess of 20 percent are warranted when there is interincisal range limited to less than 30 to 34 mm with dietary restrictions to full liquid and pureed foods, or when there is interincisal range limited to 29 mm or less, with dietary restrictions to soft and semi-solid foods. 38 C.F.R. § 4.150, Diagnostic Code 9905. Notes to the amended version of Diagnostic Code 9905 state that ratings for limited interincisal movement are not combined with ratings for limited lateral excursion. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. In addition, for VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding, or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. 38 C.F.R. § 4.150, Diagnostic Code 9905, Notes (1), (2), and (3). The RO has considered the Veteran's claim under both the old and amended criteria, and the Board will consider the Veteran's claim under the old criteria prior to September 10, 2017, and under both criteria since September 10, 2017. Analysis In the November 2012 rating decision, the RO granted service connection for trismus as secondary to residuals of a brain tumor surgery effective March 6, 2012, and assigned a 10 percent disability rating effective that same date under Diagnostic Code 9905. A September 2012 VA examination report reveals that the range of motion for lateral excursion was greater than four mm and that the range of motion measured by interincisal distance was 31 to 40 mm. A June 2021 VA examination report reflects that the range of motion for lateral excursion was greater than four mm bilaterally and that the range of motion measured by interincisal distance was 31 to 40 mm. The examiner noted that the Veteran did not require a mechanically altered-foods diet that resulted in dietary restrictions such as full liquid, puree foods, soft foods, and semi-solid foods. These findings do not reflect that range of motion measured by interincisal distance was less than 31 mm or that there were dietary restrictions to mechanically altered foods. As to the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), and 38 C.F.R. §§ 4.40, 4.45, and 4.59, the September 2012 VA examination report shows that painful motion began at greater than 4 mm on testing for lateral excursion and at 31 to 40 mm on testing for interincisal distance. Repetitive-use testing with three repetitions revealed that lateral excursion was still greater than 4 mm and that interincisal distance was still 31 to 40 mm with no functional loss or functional impairment of either temporomandibular joint. The June 2021 VA examination report reflects that pain was noted on examination bilaterally and caused functional loss. There was evidence of pain with chewing bilaterally and crepitus or clicking of the joints or soft tissue bilaterally. Repetitive-use testing with three repetitions revealed no additional loss of function or range of motion after three repetitions bilaterally. The examiner noted that the interincisal distance was still 30 to 34 mm. The Veteran was not examined immediately after repetitive use over time. The June 2021 examiner stated that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time and that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time bilaterally. The Veteran was not examined during a flare-up. The June 2021 examiner stated that the examination is medically consistent with the Veteran's statements describing functional loss during a flare-up. The examiner indicated that the Veteran has pain during a flare-up in the temporomandibular joints bilaterally. The examiner stated that lateral excursion is limited to zero to four mm bilaterally during a flare-up and that interincisal distance was still 30 to 34 mm during a flare-up. The examiner stated that there was no objective evidence of pain on non-weight bearing bilaterally and that passive range of motion was the same as active range of motion bilaterally with no objective evidence of pain on passive range-of-motion testing. Given that the Veteran is already being compensated for pain on motion and without evidence of other significant limitations, a disability rating in excess of 10 percent pursuant to DeLuca is not warranted under Diagnostic Code 9905 since March 6, 2012. 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59. The weight of evidence is against a finding that since March 6, 2012, trismus has been manifested by interincisal distance limited to less than 30 millimeters (mm) or that since September 10, 2017, trismus has been manifested by dietary restrictions to mechanically altered foods. The preponderance of evidence is against the claim, and it is denied. 10. Entitlement to an initial disability rating in excess of 10 percent for blepharospasm involving a partial paralysis of the left fifth facial dermatome associated with residuals of a brain tumor surgery 11. Entitlement to an initial disability rating in excess of 10 percent for blepharospasm involving a partial paralysis of the left seventh facial dermatome associated with residuals of a brain tumor surgery Governing law and regulations Pursuant to Diagnostic Code 8205, a 10 percent rating is warranted for moderate incomplete paralysis of the fifth (trigeminal) cranial nerve. A 30 percent rating is warranted for severe incomplete paralysis of the nerve, and a 50 percent rating is warranted for complete paralysis of the nerve. The rating is dependent on relative degree of sensory manifestation or motor loss. See 38 C.F.R. § 4.124a, Diagnostic Code 8205. Under Diagnostic Code 8207, a 10 percent rating is warranted for incomplete, moderate paralysis of the seventh (facial) cranial nerve. A 20 percent rating is warranted for incomplete, severe paralysis. A 30 percent rating is warranted for complete paralysis. See 38 C.F.R. § 4.124a, Diagnostic Code 8207. 38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. VA's Adjudication Procedures Manual (Manual), though not binding on the Board, provides also benchmarks for mild, moderate, moderately severe, and severe peripheral nerves conditions. See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. Apr. 16, 2021). Per the Manual, mild incomplete paralysis is described as the disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. Additionally, a very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. M21-1, III.iv.4.N.4.c. Moderate incomplete paralysis is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptoms combinations that may fall into the moderate category include the following: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished hyperactive reflexes (with or without sensory impairment) graded as medically moderate. Id. While not applicable under the current ratings, it is nonetheless helpful to include that a "moderately severe" evaluation level includes motor and/or reflex impairment at a grade reflecting a high level of limitation or disability, and potentially atrophy. To be described as "severe," it would be expected that there is marked muscular atrophy. Id. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id.; see also Miller v. Shulkin, 28 Vet. App. 376 (2017). Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions 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 In the October 2012 rating decision, a RO granted service connection for blepharospasm involving partial paralysis of the fifth facial dermatome and involving partial paralysis of the seventh facial dermatome as secondary to residuals of brain tumor surgery effective March 6, 2012, and assigned two 10 percent disability ratings under Diagnostic Codes 8205 and 8207 effective that same date. A September 2012 VA examination report reflects that the Veteran had mild paresthesias and/or dysesthesias in the left lower face. Muscle strength involving the muscles of cranial nerves V and VII were normal. The sensory exam for cranial nerve V was normal. The examiner indicated that left cranial nerve V was manifested by incomplete moderate paralysis and that left cranial nerve VII was manifested by incomplete moderate paralysis. An April 2018 VA examination report reflects that the Veteran had severe paresthesias and/or dysesthesias in the left lower face and the left side of the mouth and throat. The examiner noted that the Veteran had mild difficulty speaking. Muscle strength involving the muscles of cranial nerves V and VII were normal. The sensory exam for cranial nerve V was normal. The examiner indicated that left cranial nerve V was manifested by incomplete moderate paralysis. A June 2021 VA examination report reflects that the Veteran had mild paresthesias and/or dysesthesias in the left lower face. The examiner did not indicate that the Veteran had any difficulty speaking. Muscle strength involving the muscles of cranial nerves V and VII were normal. The sensory exam for cranial nerve V was normal. The examiner indicated that left cranial nerve V was manifested by incomplete moderate paralysis and that left cranial nerve VII was manifested by incomplete moderate paralysis. Though the April 2018 VA examiner noted that Veteran had severe paresthesias and/or dysesthesias in the left lower face and the left side of the mouth and throat and that he had mild difficulty speaking, the Board places great weight on the three VA examination reports showing normal muscle strength and normal sensory exam for cranial nerve V as well as the findings of only mild paresthesias and/or dysesthesias in the left lower face at the September 2012 and June 2021 VA examinations. The Board also places great weight on the three examiners' findings of only incomplete moderate paralysis of the two nerves because these findings are supported by normal findings regarding muscle strength and sensory exams. The weight of evidence is against a finding that since March 6, 2012, the blepharospasm involving a partial paralysis of the left fifth facial dermatome has been manifested by severe incomplete paralysis of the left fifth (trigeminal) cranial nerve. Similarly, the weight of evidence is against a finding that since March 6, 2012, the blepharospasm involving a partial paralysis of the left seventh facial dermatome has been manifested by severe incomplete paralysis of the left seventh (facial) cranial nerve. The preponderance of the evidence is against the claims, and they are denied. 12. Entitlement to a separate compensable rating for blepharospasm involving ptosis associated with residuals of a brain tumor surgery Governing law and regulations Disabilities from lesions of peripheral portions of the first, second, third, fourth, sixth, and eighth cranial nerves will be rated under the organs of special sense. 38 C.F.R. § 4.124A. Ptosis is evaluated based on visual impairment or, in the absence of visual impairment, on disfigurement under Diagnostic Code 7800. 38 C.F.R. § 4.79, Diagnostic Code 6019. Diagnostic Code 7800 provides for burn scars of the head, face or neck, scars of the head, face, or neck due to other causes, or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7800, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) to Diagnostic Code 7800 provides that the eight characteristics of disfigurement for purposes of evaluation are the following: a scar five or more inches in length; a scar at least one-quarter inch wide at the widest part; surface contour of the scar elevated or depressed on palpation; a scar adherent to the underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and skin indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118. Analysis In the October 2012 rating decision, a RO granted service connection for blepharospasm as secondary to residuals of brain tumor surgery effective March 6, 2012, and assigned two 10 percent disability ratings under Diagnostic Codes 8205 and 8207 effective that same date. A November 2015 VA treatment record reflects that the Veteran had ptosis of the left eye associated with blepharospasm. A May 2017 VA examination report reveals that cranial nerves II-IV and VI were affected by blepharospasm. Therefore, the Board will consider whether a separate compensable rating is warranted for ptosis. VA treatment records show that in November 2015 it was noted that the ptosis was extremely disruptive to vision for a while. Treatment records shows that the Veteran's left eye vision has been 20/20 corrected since March 6, 2012. Since the medical evidence shows that the ptosis has not caused any compensable visual impairment, the Board will consider whether a compensable rating is warranted based on disfigurement. The September 2012 VA examination report reveals that the Veteran reported twitching of the left eye. VA treatment records reflect that the Veteran denied facial drooping in September 2012. In 2013, the Veteran began Botox treatment for his twitching eye. In November 2015, the Veteran reported that his left eye had started to droop after his Botox treatment. The assessment was resolved ptosis. In May 2016, he denied any facial drooping. In August 2016, it was noted that the Veteran had not had Botox treatment since his eyelid drooped and that he was tolerated the spasm at this time. The May 2017 VA examination report shows that the Veteran still had twitching of his left eye and that he was being treated with Botox for the blepharospasm. VA treatment records reveal that in February 2018, the Veteran was doing "ok" not taking Botox. In January 2019, there was no facial droop. In February 2019 and February 2020, it was again noted that the Veteran was doing "ok" not taking Botox. In August 2020, it was noted that eye twitching was not occurring too often. The June 2021 VA examination report reflects that the Veteran reported that he still has eye twitching. Given that the Veteran has had ptosis resulting in eye drooping during the appeal period and eye twitching throughout the appeal period, the medical evidence shows that there has been disfigurement during the appeal period. The question is whether a compensable rating is warranted for this disfigurement. The evidence is in equipoise as to whether since March 6, 2012, the disfigurement from the blepharospasm with ptosis involving the left eyelid more nearly approximates skin texture abnormal in an area exceeding six square inches. Therefore, a 10 percent disability rating under Diagnostic Code 7800 effective since March 6, 2012, As to whether a higher rating is warranted, the medical evidence shows that the ptosis has resolved and that the eye twitching is not constant. Thus, preponderance of the evidence is against a finding that since March 6, 2012, the disfigurement from the blepharospasm with ptosis involving the left eyelid has been manifested by visible or palpable tissue loss and either gross distortion or asymmetry of the left eyelid. Thus, an initial disability rating in excess of 10 percent under Diagnostic Code 7800 since March 6, 2012, is not warranted. 13. Whether the retroactive reduction in the evaluation for residuals of a brain tumor surgery under Diagnostic Code 8003 effective March 6, 2012, was proper 14. Entitlement to an initial disability rating in excess of 10 percent for residuals of a brain tumor surgery under Diagnostic Code 8003 Governing law and regulations Previous determinations that are final and binding, including decisions of service connection and degree of disability, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such an error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision that constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). The Court has defined CUE as "an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has provided a three-pronged test to determine whether CUE is present in a prior determination: (1) '[E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,' (2) the error must be 'undebatable' and of the sort 'which, had it not been made, would have manifestly changed the outcome at the time it was made,' and (3) a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question." Damrel, 6 Vet. App. at 245 (quoting Russell, 3 Vet. App. at 313-14). In Fugo v. Brown, 6 Vet. App. 40, 43 (1993), the Court further held that CUE is one of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). Diagnostic Code 8003 provides that a minimum of a 60 percent disability rating is warranted for an active benign brain tumor. Residuals are rated at a minimum of 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8003. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2021). Analysis The August 2012 rating decision granted service connection for residuals of a brain tumor surgery effective March 6, 2012, and assigned a 10 percent disability rating under Diagnostic Code 8003 to incorporate all residuals. The Veteran perfected an appeal on the assignment of an initial 10 percent disability rating for residuals of brain tumor surgery. By way of a rating decision dated in August 2020 and a notification letter dated in August 2020, the Veteran received notice of the proposed decision to no longer separately rate residuals of a brain tumor surgery and the proposed reduction would result in the Veteran's combined disability rating being reduced from 50 percent disabling to 40 percent disabling. The August 2020 letter also notified him of his right to submit additional evidence and request a predetermination hearing. In the October 2020 rating decision, a RO found that there was CUE in the August 2012 rating decision assigning a separate 10 percent disability rating for residuals of a brain tumor surgery under Diagnostic Code 8003 effective March 6, 2012, and retroactively no longer rated residuals of a brain tumor surgery as a separate 10 percent disability rating under Diagnostic Code 8003 alone effective March 6, 2012. This rating decision resulted in a retroactive reduction in the Veteran's combined disability rating from 50 percent disabling to 40 percent disabling effective March 6, 2012. The October 2020 rating decision met the requirement of a 60-day waiting period between the date of the final action and the effective date of the reduction. The question that remains is whether the RO correctly applied the substantive law and regulations regarding finding CUE in the August 2012 rating decision assigning a 10 percent disability rating under Diagnostic Code 8003 for residuals of a brain tumor surgery. In the June 2019 rating decision, it was noted that there was CUE in granting a 10 percent evaluation under Diagnostic Code 8003. It was noted that the various residuals total more than 10 percent and that therefore a minimum rating of 10 percent under Diagnostic Code 8003 does not apply in this case. It was noted that service connection was not being severed but that pyramiding was being resolved. In the August 2020 rating decision, it was noted that all service-connected disabilities were considered residuals of the brain tumor surgery. In the October 2020 rating decision, it was noted that the August 2012 rating decision erroneously granted a 10 percent disability rating under Diagnostic Code 8003 to incorporate any residuals under the minimum evaluation for benign brain growths while also granted separate evaluations for compensable residuals that totaled 10 percent or more. It was determined that there was CUE because the Veteran was granted 10 percent disability evaluations for the same symptoms under two or more diagnostic codes. The October 2020 rating decision does not accurately reflect the determinations in the August 2012 rating decision. The August 2012 rating decision granted service connection for a deviated nasal septum, chronic sinusitis, and scars all as secondary to the residuals of a brain tumor surgery and effective March 6, 2012, and assigned a 10 percent disability rating for a deviated nasal septum under Diagnostic Code 6502 and zero percent disability ratings for chronic sinusitis and scars, all effective March 6, 2012. In the other words, the RO did not grant service connection for these disabilities as residuals of a brain tumor surgery but instead as disabilities caused or aggravated by residuals of a brain tumor surgery. Thus, service connection was granted for disabilities that are separate and distinct from residuals of a brain tumor surgery. Similarly, the RO granted service connection for all other disabilities on appeal as secondary to the residuals of brain tumor surgery. The RO did not determine that the various compensable disabilities are in fact residuals of brain tumor surgery rather than separate disabilities caused or aggravated by the residuals of brain tumor surgery until the June 2019 rating decision. Because the RO granted service connection for deviated nasal septum, a compensable disability, as secondary to residuals of brain tumor surgery and not as a residual of brain tumor, the August 2012 rating decision that assigned an initial 10 percent disability rating for residuals of a brain tumor under Diagnostic Code 8003 effective March 6, 2012, to incorporate all residuals was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied, such that they involved undebatable error that would have led to a materially different outcome. The Board finds that CUE cannot be found in the August 2012 rating decision that assigned a 10 percent disability rating effective March 6, 2012, under Diagnostic Code 8003 for residuals of brain tumor surgery and assigned a 10 percent disability rating effective March 6, 2012, under Diagnostic Code 6502 for deviated nasal septum on the basis of a grant of service connection secondary to residuals of brain tumor surgery. Therefore, the retroactive reduction in the evaluation for residuals of a brain tumor surgery under Diagnostic Code 8003 effective March 6, 2012, was not proper. The separate 10 percent disability rating for residuals of a brain tumor surgery under Diagnostic Code 8003 effective March 6, 2012, will be restored. Turning to whether a rating in excess of 10 percent is warranted under Diagnostic Code 8003, the medical evidence does not show that the Veteran has an active brain tumor. The June 2012 VA examination report reveals that the Veteran had trigeminal neurilemoma in 1990. No VA treatment record or examination report reveals that the Veteran has had a recurrence of trigeminal neurilemoma. The Board notes that the RO has determined that the various compensable disabilities that are rated under diagnostic codes other than Diagnostic Code 8003 are in fact residuals of the brain tumor surgery and not separate disabilities that were caused or aggravated by residuals of the brain tumor surgery. The weight of evidence is against a finding that the Veteran has or has had an active benign brain tumor during the appeal period. The preponderance of evidence is against the claim, and it is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.