Citation Nr: 21039906 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-09 094 DATE: July 1, 2021 ORDER A 30 percent rating for trigeminal neuralgia, associated with left periorbital headache, from September 2, 2010 to October 7, 2019, is granted. FINDING OF FACT From September 2, 2010 to October 7, 2019, the Veteran's trigeminal neuralgia manifested as severe, incomplete paralysis. CONCLUSION OF LAW From September 2, 2010 to October 7, 2019, the criteria for a 30 percent rating for trigeminal neuralgia, associated with left periorbital headache, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124, 4.124a, Diagnostic Code (DC) 8205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1982 to March 1986. In a July 2020 decision, the Board of Veterans' Appeals (Board) denied an increased rating higher than 10 percent for trigeminal neuralgia, associated with left periorbital headache, from September 2, 2010 to October 7, 2019, and higher than 30 percent, from October 8, 2019. This matter was remanded by joint motion for partial remand (JMPR) in April 2021 by the Court of Appeals for Veterans Claims (Court), in which the Court vacated the portion of the Board's decision that denied an increased rating higher than 10 percent for trigeminal neuralgia, associated with left periorbital headache, for the period from September 2, 2010 to October 7, 2019, and remanded the matter for further development and readjudication. In particular, the Court found that the Board did not provide an adequate statement of reasons and bases to support its finding that the March 2020 addendum to the October 2019 VA examination "is speculative in nature." Following additional review of the evidence in accordance with the April 2021 JMPR, a 30 percent rating, but no higher, for trigeminal neuralgia, associated with left periorbital headache, from September 2, 2010 to October 7, 2019, will be granted. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 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. A 30 percent rating for trigeminal neuralgia, associated with left periorbital headache, from September 2, 2010 to October 7, 2019, is granted. The Veteran contends that his trigeminal neuralgia, associated with left periorbital headache, is worse than that which is contemplated by his current 10 percent rating, for the period from September 2, 2010 to October 7, 2019. For the following reasons, a rating 30 percent rating, but no higher, for trigeminal neuralgia, associated with left periorbital headache, from September 2, 2010 to October 7, 2019, is warranted, and the claim is granted. Disability in this field is ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating disability from the conditions in the preceding sentence refer to the appropriate schedule. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Disability of the fifth (trigeminal) cranial nerve can be rated as complete paralysis (50 percent rating), incomplete, severe paralysis (30 percent rating), or incomplete, moderate paralysis (10 percent rating). 38 C.F.R. § 4.124a, DC 8205. 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, with a maximum equal to moderate incomplete paralysis. In an October 2010 VA examination, the Veteran reported continuous left-sided face pain and a history of chronic pain following a left eye surgery. The examiner did not provide a description of the severity of the Veteran's condition. In November 2010, the Veteran indicated that his left side trigeminal neuralgia had worsened. In a November 2010 letter, Dr. F.R., M.D., stated that Veteran had severe facial pain following surgery to his left eye. Dr. F.R., M.D., noted that the Veteran's pain caused severe limitations in facial movement and chewing food. In a May 2012 private treatment record, the Veteran described his pain as sharp and shooting, and reported that pain interferes with sleep. The Veteran stated that his condition is "quite debilitating to his quality of life." The Veteran was afforded a VA examination in June 2012. The Veteran reported that pain had worsened over the preceding years and reported headache symptoms 40-50 times per day. The examiner noted intermittent severe pain on the left side of the Veteran's face. The examiner also noted mild to moderate muscle strength impairment and reflex impairment. The examiner concluded that the Veteran's impairment should be characterized as incomplete, moderate paralysis. In private treatment records from 2012, the Veteran reported left-sided face pain as constant, with a pain rating ranging between 9 out of 10 and 10 out of 10. In the November 2016 Board hearing, the Veteran testified that his disability has made it difficult to work, chew food, and consistently causes pain while talking and chewing. A November 2018 VA treatment record indicates that the Veteran's was evaluated for his trigeminal neuralgia, in which the Veteran reported having severe pain all the time. The Veteran was afforded a VA examination in October 2019. The examiner noted that an in-person examination was conducted and that the Veteran's VA e-folder and CPRS file were reviewed in conjunction with the examination. The examiner noted a diagnosis of trigeminal neuralgia. The examiner noted that the Veteran's pain worsened prior to the examination. The examiner noted symptoms of severe constant pain, which are, at times, excruciating, with moderate numbness, and severe difficulty with chewing. Muscle strength testing revealed normal results across all tests. A sensory examination yielded normal results. The examiner noted incomplete, moderate paralysis of the cranial nerve. In terms of functional impact, the examiner noted that severe pain renders the Veteran unable to work. The examiner noted that an inability to sleep and eat leads to poor concentration, severe fatigue, and has caused the Veteran to experience 20 pounds of weight loss. The examiner noted that VA treatment records document severe pain. The examiner opined that the Veteran's pain is severe and has worsened over the preceding year. The examiner noted that the Veteran has underwent past surgery for his condition and noted that the Veteran has been referred for additional surgical intervention. An addendum to the October 2019 VA examination was provided in March 2020, in which the examiner was asked to opine as to the date that the Veteran's symptoms worsened. The examiner stated that pain is a very subjective symptom and can be very difficult to determine as to exactly when it worsened. However, the examiner stated that, with a reasonable degree of medical certainty, the Veteran's pain most likely began to worsen between mid-2018 to November 2018. In an October 2020 private medical letter, A.T. noted that the Veteran underwent Gamma Knife radiosurgery for his left-sided trigeminal neuralgia in August 2012 and December 2019, and stated that after the August 2012 procedure, the Veteran had a vast improvement in his facial health. However, A.T. noted that the condition returned in 2018, which is the reason that the Veteran underwent the December 2019 procedure. Since the December 2019, A.T. stated that the Veteran's facial pain has improved. The evidence from September 2, 2010 to October 7, 2019, indicates that the Veteran's impairment was characterized as incomplete, severe paralysis. In November 2010, the Veteran had severe facial pain, which caused severe limitations in facial movement and chewing food. In May 2012, the Veteran stated that his condition is "quite debilitating to his quality of life." The June 2012 VA examiner noted that the Veteran has intermittent severe pain. Private medical records from 2012 show that the Veteran rated his pain as between 9 out of 10, and 10 out of 10. In October 2020, A.T. noted that the Veteran underwent Gamma Knife radiosurgery for his left-sided trigeminal neuralgia in August 2012. In the November 2016 Board hearing, the Veteran testified that his condition consistently causes pain while talking and chewing. A November 2018 VA treatment record shows that the Veteran reported having severe pain all the time. The October 2019 VA examiner opined that the Veteran's pain is severe. Thus, from September 2, 2010 to October 7, 2019, the record consistently shows that the Veteran's condition was severe in nature. Therefore, the evidence shows that a 30 percent rating under DC 8205, for the period from September 2, 2010 to October 7, 2019, is warranted and, the appeal is granted. However, the evidence of record, from September 2, 2010 to October 7, 2019, does not indicate that the Veteran's impairment was characterized as complete paralysis. Instead, throughout the period, the evidence consistently shows that, despite severe pain, the Veteran has been able to chew and talk. Thus, from September 2, 2010 to October 7, 2019, the record does not show complete paralysis. Therefore, a higher, 50 percent rating, under DC 8205, for the period from September 2, 2010 to October 7, 2019, is not warranted and, to this extent, the appeal is denied. (Continued on the next page.) A 30 percent rating, but no higher, for severe, incomplete neuralgia of his trigeminal cranial nerve, from September 2, 2010 to October 7, 2019, is warranted and, the appeal is granted. See 38 C.F.R. §§ 4.124, 4.124a, DC 8205. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart 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.