Citation Nr: 21075650 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-52 902 DATE: December 21, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for cervical strain is reopened; to that extent only, the claim is granted. A higher 30 percent rating, but no greater, also is granted for service-connected paresthesia of the 5th cranial nerve, status-post maxillofacial surgery with bruxism. As well, a higher 20 percent rating, but no greater, is granted for service-connected paresthesia of the 7th cranial nerve, status-post maxillofacial surgery with bruxism. REMANDED Entitlement to service connection for cervical strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 6, 2019, also is remanded. FINDINGS OF FACT 1. The Veteran did not submit a Notice of Disagreement (NOD) or Substantive Appeal (VA Form 9 or equivalent statement) in response to May 2007 and December 2013 rating decisions previously considering and denying her claim for service connection for cervical strain. 2. Additional evidence since submitted or otherwise obtained, however, when considered with the record, as a whole, is not cumulative and redundant of the evidence of record at the time of the last prior final and binding denial of this claim and raises a reasonable possibility of substantiating it. 3. The Veteran's facial paresthesia of cranial nerve V (trigeminal) and of cranial nerve VII (facial) causes what amounts to "severe" incomplete paralysis, but not complete paralysis, of these nerves. CONCLUSIONS OF LAW 1. The May 2007 and December 2013 rating decisions earlier considering and denying the Veteran's claim for service connection for cervical strain are final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). 2. But there is new and material evidence since those decisions to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria are met for entitlement to higher 30 percent rating, though no greater, for service-connected paresthesia of the 5th cranial nerve, status-post maxillofacial surgery with bruxism. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8205. 4. The criteria also are met for entitlement to higher 20 percent rating, though no greater, for service-connected paresthesia of the 7th cranial nerve, status-post maxillofacial surgery with bruxism. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8207. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January to December 2005. NEW AND MATERIAL EVIDENCE 1. New and material evidence having been received, the claim of entitlement to service connection for cervical strain is reopened Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, according to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed unless inherently incredible or beyond the competency of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Regardless of the local regional office's (RO's) determination as to whether new and material evidence has been received, the Board must address this issue preliminarily, so in the first instance, because this initial determination affects the Board's jurisdiction to reach the underlying claim to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the claim and readjudicate it in light of all the evidence. Justus, 3 Vet. App. at 512. But once the claim is reopened, the presumption of credibility regarding this evidence no longer applies. Id., at 513. If, on the other hand, the Board determines there is not the required new and material evidence to reopen a claim, that is where the analysis ends because further consideration of the claim is neither required nor permitted. See Barnett at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In this case at hand, the Board finds that the required new and material evidence has been submitted since the last final and binding denial of this claim to permit reopening it. 38 C.F.R. § 3.156(a). The Veteran's claim for service connection for a neck (cervical spine) condition was originally denied in a May 2007 rating decision because the evidence then of record failed to show that the claimed condition had resulted in permanent residuals or chronic disability. A December 2013 RO decision declined to reopen the claim concluding there was not new and material evidence since that prior May 2007 decision for essentially the same reasons, i.e., no showing of persistent disability in service and currently diagnosed disability to establish chronicity (permanence). However, more recent VA treatment records show the Veteran has chronic neck pain that may be attributed to her military service. See August 2017 Primary Care Physician Note (patient was in a motor vehicle accident (MVA) on base that affected her neck). The Veteran's claim initially was characterized as for residuals of whiplash/neck condition, so on the premise that she had residuals of that motor vehicle accident during her service. The Board is cognizant of the Court's ruling in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), which held that pain alone may constitute a ratable disability. However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Rather, the Court stated "[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id. Here, a preliminary review of the medical evidence suggests the Veteran's neck pain is potentially severe enough to reach the level of causing functional impairment of her earning capacity, and that it may be the result of the MVA during her military service. See 38 C.F.R. § 3.156(a); see also Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). This additional evidence is new and material to the claim since not before the local RO when it previously considered and denied this claim, and this evidence is not cumulative or redundant of the evidence then of record. This additional evidence also raises a reasonable possibility of substantiating the claim since, as mentioned, the Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. at 117. Therefore, in this sense this evidence also is material. Accordingly, this claim for service connection for a cervical strain must be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. This claim requires further development before being readjudicated on its underlying merits, however, meaning on a de novo basis, so the Board is remanding it back to the RO (Agency of Original Jurisdiction (AOJ)). INCREASED RATINGS 1. A higher 30 percent rating, though no greater, is granted for paresthesia of the 5th cranial nerve, status-post maxillofacial surgery with bruxism 2. A higher 20 percent rating, though no greater, is granted for paresthesia of the 7th cranial nerve, status-post maxillofacial surgery with bruxism Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. By way of procedural history, in a February 2020 decision, the Board denied the Veteran's claims for ratings higher than 10 percent for the paresthesias of her 5th and 7th cranial nerves, status-post maxillofacial surgery with bruxism. She appealed the denial of these claims to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In granting a February 2021 Joint Motion for Remand (JMR), the CAVC vacated the Board's decision denying these increased rating claims and remanded them back to the Board for further proceedings consistent with the JMR. Specifically, the CAVC concluded the Board had failed to adequately address the Veteran's lay statements regarding the severity of her conditions and, in doing so, had relied solely on a May 2017 VA examination report in making its determination. These claims, therefore, are again before this Board for readjudication consistent with the terms of the CAVC granted JMR. And, as will be discussed, in this additional review of these claims the Board finds that a higher 30 percent rating, but no higher, is warranted for the paresthesia of the 5th cranial nerve, and that a higher 20 percent rating, but no higher, is warranted for the paresthesia of the 7th cranial nerve. Under DC 8205, a 10 percent rating is warranted for moderate incomplete paralysis of the 5th (trigeminal) cranial nerve; a 30 percent rating is warranted for severe incomplete paralysis of this nerve; and a 50 percent rating is warranted for complete paralysis of this nerve. See 38 C.F.R. § 4.124a, DC 8205. The rating is dependent on relative degree of sensory manifestation or motor loss. Id. Under DC 8207, a 10 percent rating is warranted for incomplete, moderate paralysis of the 7th (facial) cranial nerve. A 20 percent rating is warranted for incomplete, severe paralysis and a 30 percent rating is warranted for complete paralysis. The rating is dependent upon relative loss of innervation of facial muscles. These descriptive words "moderate" and "severe" as used in these DCs are not specifically defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran underwent a VA examination in May 2017. She reported having feelings of numbness, a prickling sensation, and pain along her jaw and along the right side of her upper and lower lips. The examiner indicated the Veteran had moderate constant pain, severe intermittent pain, moderate paresthesias, and severe numbness. Muscle strength testing of the 5th cranial nerve (muscles of mastication, jaw clench, palpate masseter, and temporalis) was normal. In fact, muscle strength of all the cranial nerves (i.e., 5th, 7th, 9th, 10th, 11th, and 12th,) was reported as normal. Sensory exam of the Veteran's upper and mid-face was found to be normal, as was the left-side of her lower face. However, her right lower face had decreased sensation. In the portion of the examination titled "cranial nerve summary evaluation," the examiner ultimately concluded that the Veteran had incomplete, moderate severity of nerve damage on the right side, while the left side was not affected. The examiner indicated that numbness and paresthesia affected the Veteran's ability to work as a full-time teacher, in that she had to stop and rest, then modify her teaching method involving less talking for the rest of the afternoon. In the "remarks" portion of the report, the examiner stated that her review of the record indicated that an EMG was ordered to provide objective measure of the severity of the Veteran's right-side 5th cranial neuropathy. In an addendum opinion, the examiner indicated that an EMG had been completed. She reported that it, in conjunction with her in-person examination, revealed the Veteran had moderate neuropathy of the 5th cranial nerve. Regarding the 7th cranial nerve, the May 2017 VA examiner noted the Veteran's complaints of pain, paresthesias, and numbness on the right side. Muscle strength testing of the 7th cranial nerve involving both the upper and lower portions of the face (muscles of facial expression, including grins) was found to be normal. The examiner described the severity of the nerve damage as moderate. In her addendum opinion, the examiner stated that the Veteran's June 2017 EMG, when viewed in conjunction with her in-person examination, also reflected that she had moderate neuropathy of the 7th cranial nerve. The Board's subsequent denial of these claims, as already mentioned, primarily was predicated on that examiner's assessment of the severity of the paresthesias as "moderate". In support of her increased rating claims, however, the Veteran has submitted several statements maintaining that higher ratings are warranted because she is in constant pain (her face hurts 100% of the time) that necessitates the use of pain medication, therefore affecting her ability to drive and work. She reports that her ability to communicate has been affected and that she has difficulty speaking, especially by the end of the day. She reports experiencing swelling, and that it hurts to talk, move her mouth, and brush her teeth, that her gums and half of her face are numb, that she has a discolored chin, that she feels like she has constant infections, that she has tight and scarred gums, and that she needs braces to help with pain. Additionally, she reports that her cranial nerve impairment significantly impacts her ability to work. In May 2018, the Veteran submitted a Cranial Nerves Diseases Disability Benefits Questionnaire (DBQ) report that she appears to have completed and signed herself. In the history section of this report, she stated that she had a 13-year history of altered sensation, throbbing pain, and transient parenthesis. She reported having no treatment to date. In terms of symptoms, she marked on the examination form that she suffers from severe right lower face pain and moderate right side of the mouth pain. She also reported suffering from severe intermittent pain and severe dull pain in her right lower face and in the side of her mouth. As well, the Veteran reported having aching (so pain) in her mouth and gums that is constant. She had an EMG that revealed clinically diminished sensation in right V3 nerve distribution and diminished motor response to mentalis muscle innervated by branch of facial nerve on the right compared to the left. Considering the totality of this evidence, the Board finds that the Veteran's 5th cranial nerve disability amounts to incomplete severe paralysis of the trigeminal cranial nerve, warranting a higher 30 percent disability evaluation. The Board also finds that her 7th cranial nerve disability amounts to severe incomplete paralysis such that a higher 20 percent rating is warranted. In so concluding, the Board finds that the objective medical evidence in this case does not tend to demonstrate that the Veteran has complete paralysis of the trigeminal and/or cranial nerves. Instead, the evidence shows that she experiences severe incomplete facial paralysis that impacts her facial expressions and communication, swallowing, and additionally impairs muscle function or sensation in her face. Accordingly, the Board finds a 30 percent disability rating, but no higher, for the paresthesia of the 5th cranial nerve, and a 20 percent disability rating, but no higher, for the paresthesia of the 7th cranial nerve, are warranted especially when resolving all reasonable doubt concerning this in the Veteran's favor. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for cervical strain is remanded. A December 2006 VA examiner noted the Veteran did not have a then current diagnosis referable to her neck. However, the medical evidence of record reflects that she consistently has reported experiencing chronic neck pain and that her pain may be related to the MVA during her service (i.e., a whiplash injury). The Federal Circuit Court issued a precedent decision that is directly relevant here. Namely, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit Court explained that the term "disability" for VA compensation purposes refers to a functional impairment, rather than to the underlying cause of the impairment. While a diagnosed condition may result in a disability, the disability itself need not be diagnosed. Pain is an impairment because it diminishes the body's ability to function, and pain need not be diagnosed as connected to a current underlying condition to function as an impairment. Therefore, to establish the presence of a disability, a Veteran will need to show that her pain reaches the level of a functional impairment of earning capacity. The pain need not be tied to physical evidence of a lack of functionality and/or physical evidence of a current disease or injury. See Saunders, 886 F.3d at 1368. This precedent case is directly relevant here because the December 2006 VA examination report does not indicate a current diagnosis for the Veteran's complaints, including of chronic pain, but the additional evidence of record suggests that her pain may reach the level of causing a functional impairment of her earning capacity. So further development of this claim is needed to assist in making this critical determination and, if confirmed it does, for comment concerning the posited correlation between her neck pain and military service. Therefore, a VA medical examination and opinion must be obtained. 2. Entitlement to a TDIU prior to June 6, 2019, also is remanded. This claim for a TDIU as of an earlier date is "inextricably intertwined" with the claim being remanded, as it will shape both the scope and substance of the substantive analysis that must be done in determining whether the Veteran is entitled to this additional TDIU benefit prior to June 6, 2019. Therefore, adjudication of this derivative TDIU claim must be deferred pending completion of the further development of this other claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together, rather than piecemeal, since the claims have common parameters). Accordingly, these claims are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records, whether VA or private, pertinent to her claim for service connection for cervical strain and a TDIU prior to June 6, 2019. If she provides the amount of information needed, obtain the records that she identifies as possibly relevant these claims, following proper procedures, and appropriately notify her and her attorney if unable to obtain records that are identified. See 38 C.F.R. § 3.159(c) and (e). 2. After obtaining all additional treatment or other records pertinent to these claims, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of her claimed cervical strain. A copy of this decision and remand and all relevant medical and other records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran's lay assertions, and undertake all indicated testing and evaluation. If possible, the appropriate DBQ should be used. The examiner is asked to first identify all current neck (cervical spine) disabilities including by specifying their diagnoses. But even if the Veteran does not have a current diagnosis referable to her neck or cervical spine to explain or account for her reported symptoms (e.g., chronic pain, etc.), the examiner must expressly indicate this with a fully reasoned explanation. The examiner must also specify whether there is any functional impairment of earning capacity owing to the Veteran's complaints of neck or cervical spine pain to warrant considering the pain, for all intents and purposes, as a ratable disability even absent an underlying diagnosis accounting for the pain. In that eventuality, the VA examiner should determine whether it is at least as likely as not (a 50 percent probability or greater) the Veteran's neck or cervical spine pain (if determined to be due to an underlying diagnosis or if causing functional impairment of her earning capacity to be considered a ratable disability for all intents and purposes, even absent an underlying diagnosis) began during her service, within a year of her discharge (if owing to arthritis), or is otherwise related or attributable to her service, including especially to her MVA in service when she claims to have sustained a whiplash injury. To reiterate, evidence of pain alone that causes functional impairment of earning capacity, even without a specific underlying diagnosis or identifiable disease, may constitute a ratable disability for VA compensation purposes. The absence of evidence of treatment for a neck or cervical spine disability in the Veteran's STRs or even post-service treatment records before initial diagnosis cannot be the sole reason for providing an unfavorable opinion. However, it is permissible to consider this as one of several factors provided also there is explanation of why it is reasonable to expect documentation of specific complaints, etc., in the treatment records. The Veteran is competent to report her symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.