Citation Nr: 21028973 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-10 165 DATE: May 12, 2021 ORDER A rating in excess of 20 percent for impairment of the seventh cranial nerve damage is denied. FINDING OF FACT The Veteran's cranial nerve damage condition has manifested with constant pain, numbness, functional impairment, eating limitations and incomplete paralysis. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for cranial nerve damage condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a diagnostic code (DC) 8207. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1991 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in November 2016, May 2018, April 2019, October 2020 and January 2021 and remanded for additional development. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Cranial nerve damage The Veteran is currently rated at 20 percent under DC 8207 for his seventh cranial nerve damage condition effective January 29, 2010. He reports that his condition warrants a rating in excess of 20 percent. In support, he stated that he continues with constant pain, numbness and limitations that required oral medications and steroid injections. See BVA hearing transcripts (August 2016), and see also VA medical treatment records (February and June 2018) and Non-VA medical treatment records (June 2019 and May 2020). Under DC 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 and a 30 percent rating is warranted for complete paralysis. The Board finds that the Veteran warrants a 20 percent rating due to observable adverse symptomology, (i.e., pain, numbness, difficulty eating, loss of sensation, etc...) which is severe enough to warrant numerous medical treatments, including nerve blocks. Indeed, his condition more nearly approximates the criteria for severe incomplete paralysis. The Veteran was afforded VA examinations in April 2010, February 2015, April 2017 and October 2019. The examinations show pain, flare ups, numbness, loss of sensation, functional impairment, numerous limitations and several medical treatments. See VA medical examinations (April 2010, February 2015, April 2017 and October 2019). However, the medical and lay evidence, including the VA examinations do not indicate that the Veteran's suffers from complete paralysis. The Board finds that the preponderance of the evidence shows that the Veteran's cranial nerve damage condition more nearly approximates a 20 percent rating which is the maximum for incomplete paralysis. Thus, a rating in excess of 20 percent is not warranted. There is no indication that the Veteran suffers from complete paralysis or other impairment of motor, sensory, or mental function. In addition, the Board notes that the Veteran is rated under the correct DC. The Veteran condition and symptoms are covered under DC 8207 and the Veteran is currently rated at the maximum rating allowed for incomplete paralysis. DC 8207 is the appropriate DC for evaluating the Veteran's incomplete paralysis as the disability is specifically listed. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015). As such, the preponderance of the evidence is against this claim. Therefore, the Veteran does not warrant a rating in excess of 20 percent for cranial nerve damage and the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.