Citation Nr: 21075534 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 15-19 907 DATE: December 20, 2021 ORDER Entitlement to an initial disability evaluation of 30 percent, but no higher, for trigeminal neuralgia, right side, is granted for the entire period on appeal. FINDING OF FACT For the entire initial rating period on appeal, the Veteran's trigeminal neuralgia, right side, more nearly approximates severe incomplete paralysis of the 5th (trigeminal) cranial nerve. CONCLUSION OF LAW The criteria for entitlement to an initial disability evaluation of 30 percent, but no higher, for trigeminal neuralgia, right side, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.124a, 4.150, Diagnostic Codes 8205, 8405. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1975 to October 1995. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, this matter was last before the Board. At that time, the Veteran's right-sided trigeminal neuralgia was evaluated as 10 percent disabling throughout the entire applicable period. Following the Board's remand, the Agency of Original Jurisdiction (AOJ) granted entitlement to a 30 percent evaluation, effective September 1, 2021. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Applicable Law and Regulations The Veteran contends that the currently assigned 30 percent disability rating for trigeminal neuralgia of the right side does not adequately reflect the level of his disability. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The regulations for evaluating neurological conditions state that disability is rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.120. Speech disturbances, impairment of vision, and visceral manifestations are also to be considered. 38 C.F.R. § 4.123 explains that neuritis and neuralgia, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbance, and constant pain, at times excruciating, is to be rated on the scale provided for the injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. On the other hand, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale as neuritis, with a maximum equal to moderate incomplete paralysis for the nerve involved. 38 C.F.R. §§ 4.124; 4.124a, Diagnostic Code 8405, Note. Neuritis of the fifth (trigeminal) cranial nerve is rated under Diagnostic Code 8305 and neuralgia of the fifth (trigeminal) cranial nerve is rated under Diagnostic Code 8405. Both are rated as for paralysis of that nerve under Diagnostic Code 8205. Evaluations under Diagnostic Code 8205 are dependent upon the relevant degree of sensory manifestation or motor loss. Under Diagnostic Code 8205, a 10 percent rating is warranted for moderate incomplete paralysis of the 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 ratings are dependent on relative degree of sensory manifestation or motor loss. 38 C.F.R. § 4.124a, Diagnostic Code 8205. Veterans suffering from tic douloureux or trifacial (trigeminal) neuralgia may be rated up to complete paralysis of the affected nerve. Id. Trigeminal neuralgia is a chronic pain condition that causes extreme, sporadic, sudden burning or shock-like face pain. See The National Institutes of Health: National Institute of Neurological Disorders and Stroke, Trigeminal Neuralgia Information Page, National Institute of Neurological Disorders (last accessed November 23, 2021), see also Dorland's Illustrated Medical Dictionary, 1262 (32nd ed. 2012). 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. Id. The Board notes that the terms mild, moderate, and severe are not defined in the Ratings Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), at *10. If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. The Veteran's trigeminal neuralgia is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8405. Diagnostic Code 8405 provides a 10 percent rating for symptoms analogous to moderate, incomplete paralysis of the fifth cranial nerve. A 30 percent rating is assigned for symptoms approximating severe, incomplete paralysis of the fifth cranial nerve. A 50 percent rating is assigned for symptoms akin to complete paralysis of the fifth cranial nerve. 38 C.F.R. § 4.124a. The ratings for cranial nerves are for unilateral involvement. When a veteran suffers from bilateral involvement, a combined rating is assigned. Id. Here, the involvement is unilateral and right sided. VA received the Veteran's initial claim for service connection on May 14, 2013. In June 2013, she received a VA examination to address the claim. VA examination resulted in assessment of trigeminal neuralgia as secondary to service-connected multiple sclerosis (MS). At that time, the Veteran reported severe constant facial pain, with the sudden onset of severe lancinating pain of ocular and maxillary distribution. Examination findings noted constant severe pain of the upper face, eye and/or forehead, mid face, lower face and side of mouth and throat, which was excruciating at times. The pain was severe enough to interfere with concentration to task. Muscle strength and sensory examination were otherwise normal. The examiner characterized the severity as "incomplete, moderate." In her July 2013 notice of disagreement (NOD), the Veteran expressed that her disability warranted a 30 percent evaluation. In a November 2015 statement, the Veteran asserted that her disability had worsened in severity. In February 2020, or about 5 years after the worsening was asserted, the Board remanded the matter to obtain a new VA examination. VA examination in September 2021 resulted in continued assessment of trigeminal neuralgia. At this time, the Veteran described sudden onset of sharp right sided face and jaw pain with muscle spasms and intermittent paresthesia, particularly in relation to flares of her MS. During flares, the Veteran had trouble speaking clearly and the examiner stated that she would have difficulty with prolonged speaking during these flare-ups. Findings and symptoms included constant moderate and constant mild pain in the lower face and side of mouth and throat respectively, that was at times excruciating. The examiner also identified intermittent, severe, pain in the lower face, and mild intermittent pain of the side of mouth and throat. There was also dull, mild, pain of the upper face, eye and/or forehead, mid face, lower face and side of mouth and throat. Examination showed moderate paresthesias and/or dysesthesias in the lower face and side of mouth and throat. There was no apparent numbness. Sensory examination was normal. The Veteran had moderate difficulty chewing and speaking. Muscle strength testing showed severe, incomplete paralysis, of the right 5th cranial nerve. The examiner summarized the severity as incomplete, severe, paralysis. In resolving any doubt in the Veteran's favor, the Board concludes that a 30 percent, but no greater, evaluation is warranted throughout the applicable period for incomplete, severe, paralysis of the 5th cranial nerve. VA examination in June 2013 reflected constant severe facial pain, with the sudden onset of severe lancinating pain of ocular and maxillary distribution, that was severe enough to impair the Veteran's ability to concentrate to task. The Veteran disagreed with the assigned 10 percent evaluation in July 2013 and sought a 30 percent evaluation. In November 2015, the Veteran asserted that the disability had increased in severity. VA examination in September 2021, reflected continued constant, at times excruciating pain, as well as new symptoms of muscle spasms, intermittent paresthesias and severe, but not complete, impairment of muscle strength, resulting in moderate difficulty chewing, as well as moderate difficulty speaking at length, particularly during flare-ups. These symptoms approximate severe, incomplete paralysis warranting a 30 percent evaluation. Given the Veteran's assertions that the trigeminal neuritis has consistently been more severe than evaluated and given the latency between these assertions and the September 2021, examination, a 30 percent evaluation is warranted for the entire initial period. An effective date should not be "assigned mechanically" as of the date of an examination. Swain v. McDonald, 27 Vet. App. 219, 224, n. 4 (2014). Although the Board concludes that a 30 percent evaluation is warranted, the criteria for a 50 percent evaluation are not met. To substantiate a 50 percent evaluation, the evidence must establish that the severity of the trigeminal neuritis approximates compete paralysis. Along these lines, the Board acknowledges that the trigeminal neuritis has resulted in severe, at times excruciating pain, that interrupts the ability to focus on task, as well as severe incomplete paralysis that results in difficulty chewing and speaking. However, trigeminal neuritis has not resulted in complete paralysis such that the Veteran is unable to engage in speech or that mastication is not possible, including during flare-ups. While flare-ups would prevent prolonged speaking and there is severe impairment of muscle function, the evidence does not indicate that there is complete muscle paralysis. Likewise, while the pain is severe, and at times excruciating, and affects the Veteran's ability to concentrate on a task, the evidence does not show impairment to the extent that pain would prevent the ability to perform a task, including the activities of daily living, or that the pain has resulted in any hospitalization. Thus, the degree of impaired function substantially less than the type pictured for complete paralysis. Accordingly, during the initial period, the Veteran's trigeminal neuritis has not manifested by complete paralysis of the 5th cranial nerve, and an evaluation in excess of 30 percent is not established. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.