Citation Nr: 21041867 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-51 502 DATE: July 10, 2021 ORDER An initial rating in excess of 10 percent for left maxillary nerve neuropathy, status post left orbital floor fracture, is denied. An initial, separate 10 percent rating is granted for bone loss of the skull associated with a left orbital floor fracture, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's left maxillary nerve neuropathy has been manifested by moderate incomplete paralysis; it is not shown to be manifested by severe incomplete or complete paralysis. 2. Throughout the period on appeal, the Veteran's disability has been manifested by bone loss of less than a 25-cent piece (U.S. quarter) in size. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left maxillary nerve neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8205. 2. The criteria for an initial, separate rating of 10 percent, and no higher, for bone loss of the skull have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.73, Diagnostic Code 5296. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1985 to April 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. By that decision, the RO granted service connection and a 0 (zero) percent (noncompensable) rating for left orbital floor fracture, effective June 10, 2013. In May 2020, the RO recharacterized the issue on appeal from left orbital floor fracture to left maxillary nerve neuropathy, status post left orbital floor fracture, and increased the rating from 0 to 10 percent, effective June 10, 2013. This case was previously before the Board in December 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its remand directives, the Board ordered the AOJ to afford the Veteran a new VA examination in connection with his claim, and to specifically consider any damage to the cranial nerves. The Veteran was afforded a VA examination of the cranial nerves in August 2019. There has been at least substantial compliance with the December 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in a May 2020 rating decision, the AOJ granted service connection for residual scars of the left upper eyelid and for left nostril partial anosmia (loss of smell), assigning noncompensable ratings for each disability. The Veteran was notified of that decision and of his appellate rights by letter dated later that same month, which stated that if he disagreed with the decision he must submit an appropriate form (either VA Form 20-0995 (Decision Review Request: Supplemental Claim), VA Form 20-0996 (Decision Review Request: Higher-Level Review), or VA Form 10182 (Decision Review Request: Board Appeal)) within one year of notification of the decision. While the Veteran expressed dissatisfaction with the rating assigned for residual scars of the left upper eyelid in an August 2020 letter, he has not appealed either the rating assigned or the effective dates of service connection for those awards by submitting an appropriate form. As such, those issues are not before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating a veteran must separately appeal "downstream" issues regarding the ratings and effective dates assigned once disabilities are granted service connection). The Veteran is free to file an application for an increased rating regarding his service-connected residual scars of the left upper eyelid if he wishes to do so. 1. Entitlement to an initial rating in excess of 10 percent for left maxillary nerve neuropathy, status post left orbital floor fracture. 2. Entitlement to an initial, separate 10 percent rating for bone loss of the skull associated with a left orbital floor fracture. The Veteran contends that his service-connected left orbital floor fracture disability and its residuals warrant a rating in excess of 10 percent. Specifically, he contended in his April 2014 notice of disagreement (NOD) that he had skull bone loss from the corner of his left eye all the way to his nose and beneath his eye socket. In his September 2016 substantive appeal, he contended that he has always had double vision in his left eye, constant pressure, headaches, trouble breathing, and that his sense of smell was pretty much gone. He also contended that he had infraorbital facial numbness at his May 2016 VA examination. 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. See 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate 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); Fenderson v. West, 12 Vet. App. 119 (1999). As noted, in its March 2014 rating decision, the AOJ granted service connection for left orbital floor fracture and assigned an initial noncompensable rating. At that time, the AOJ rated the Veteran's disability under Diagnostic Code (DC) 5299-5296 for loss of part of the skull. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the musculoskeletal system, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a DC to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. In this case, because DC 5296 specifically contemplates loss of part of the skull, the Board finds that the appropriate DC is 5296, and that a hyphenated DC is not required. In its May 2020 rating decision, the AOJ recharacterized the Veteran's service-connected disability as left maxillary nerve neuropathy, status post left orbital floor fracture, and rated the disability under DC 8205 for paralysis of the fifth (trigeminal) cranial nerve. It assigned a 10 percent rating under DC 8205 for incomplete, moderate paralysis. Under DC 5296, a 10 percent rating is warranted for loss of part of the skull, both inner and outer tables, without brain hernia, affecting an area smaller that the size of a 25-cent piece or 0.716 inches (4.619 cm) squared. A 30 percent rating is warranted for loss of part of the skull, without brain hernia, affecting an area intermediate between the size of a 25-cent piece and a 50-cent piece. A 50 percent rating is warranted for loss of part of the skull, without brain hernia, with an area larger than the size of a 50-cent piece or 1.140 inches (7.355 cm) squared. A maximum 80 percent rating is warranted for loss of part of the skull with brain hernia. The Board notes that a cerebral (brain) hernia is a protrusion of brain substance through the cranium, through either a cranium bifidum, the foramen magnum, or the tentorial notch. Dorland's Illustrated Medical Dictionary, p. 848 (32nd ed. 2012). A note to DC 5296 instructs adjudicators to rate intracranial complications separately. The Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the application of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. The Board notes, however, that the rating criteria of DC 5296 were unchanged by February 2021 amendments. Under DC 8205, for paralysis of the fifth (trigeminal) cranial nerve, a 10 percent rating is warranted for moderate incomplete paralysis, a 30 percent rating is warranted for severe incomplete paralysis, and a 50 percent rating is warranted for complete paralysis, dependent upon the relative degree of sensory manifestation or motor loss. 38 C.F.R. § 4.124a, DC 8205. Turning to the evidence of record, the Board first notes that the Veteran's service treatment records contain surgical records and pathological reports related to the Veteran's left orbital floor fracture. An October 1986 operative report showed that a large bony fragment was removed from the maxillary antrum, revealing the fragment to be the bulk of the maxillary segment of the orbital floor adjacent to the medial wall bone. A 0.3 mm thick piece of supramid sheeting was tailored to fit the orbital floor defect. An October 1986 pathology report showed that the bone fragment removed from the skull during the operation was a thin, membranous bony fragment measuring 2 centimeters by 1 centimeter by 0.8 centimeters. The Veteran was afforded a VA examination in connection with his claim in May 2016. The examiner noted the Veteran's complaint of pressure around the left eye for the previous two years and his report of getting blurry vision in the right eye for reading. The examiner also noted the surgical history, the Veteran's complaint of infraorbital facial numbness, and that while he reported some diplopia (double vision) at the extreme nasal, temporal, superior, and inferior positions, there was no diplopia in the primary or secondary positions, and that diplopia per the Veteran varied. On examination of the left eye, the Veteran had uncorrected and corrected distance and near vision of 20/40 or better. In the right eye, he had uncorrected distance vision of 20/70, corrected distance vision of 20/40 or better, and uncorrected and corrected near vision of 20/40 or better. The examiner indicated that he did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision. His pupils were reactive to light, and afferent pupillary defect was not present. The Veteran did not have anatomical loss, light perception only, or extremely poor vision or blindness of either eye, did not have a corneal irregularity resulting in astigmatism, and did not have diplopia. Left eye pressure was 15 mm Hg and right eye pressure was 13 mm Hg. The Board notes that normal eye pressure ranges from 10-21 mm Hg. External examination of the lids and lashes, conjunctivae, corneas, anterior chambers, irises, lenses, and fundi were normal in both eyes. While the examiner indicated that the Veteran had a visual field defect, he noted that there was no contraction or loss of the visual field, the Veteran did not have a scotoma, and he did not have legal blindness based upon visual field loss. The examiner stated that the Veteran's eye condition was status post left orbital floor fracture with resulting paresthesia in the infraorbital area of the left side, that he got pressure sensation around the left eye, that there were no ocular findings, and that he had refractive error in the right eye which was the cause of his blurry vision. The examiner indicated that the Veteran had not had any incapacitating episodes attributable to any eye condition in the past 12 months and opined that the condition did not impact the Veteran's ability to work. The Veteran was afforded a VA examination regarding cranial nerves diseases in August 2019. The examiner diagnosed left maxillary nerve sensory neuropathy in the branch of cranial nerves I and V. The Board notes that cranial nerve I relates to the olfactory nerve, and as noted above, the Veteran was granted a separate, noncompensable rating on that basis in the May 2020 rating decision. Cranial nerve V relates to the trigeminal nerve. The examiner indicated that the Veteran had intermittent pain, dull pain, paresthesias and/or dysesthesias, and numbness in the left mid face, all of which he rated as moderate. He did not indicate that the Veteran had these symptoms in any other areas of his face. Strength testing was normal, but sensory examination of the left mid face was decreased. The examiner indicated that the only cranial nerve affected in terms of paralysis was the trigeminal nerve, and he rated the level of paralysis as incomplete and moderate. The examiner opined that the Veteran's left maxillary nerve neuropathy disability did not impact his ability to work. The Veteran was also afforded a VA examination regarding bone fractures and diseases in August 2019. The examiner described the circumstances of onset as left orbital floor fracture, medial wall, with entrapment when the Veteran was struck by a nightstick in October 1986. The examiner noted the October 1986 hospitalization and repair surgery, indicated that the Veteran currently suffered from pain, and that no joint was affected by the bone condition. The examiner noted that the Veteran reported flareups described as both sharp pain and swelling in the left mid face. The Veteran reported that the severity of the sharp pain was moderate but occasionally severe, and that the severity of the swelling was mild to moderate. He reported that sharp pain and swelling both occurred two times per week and lasted from hours to half the day, that flare ups happened sporadically or when sleeping on his left side, that there were no alleviating factors for flareups, and that he did less until the pain and swelling improved. The examiner described a bone deformity as a slight irregularity with palpation over the left lower orbital rim compared to the right. There was no bone infection or signs of bone disease on examination, there was no joint involvement or ankylosis secondary to the bone condition, and the disability did not involve the legs or abnormal weight bearing. There was no genu recurvatum or malunion of the os calcis or astralgus, and imaging was not performed. In light of the above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for left maxillary nerve neuropathy under DC 8205. Throughout the period on appeal, the Veteran's facial numbness/paralysis has been manifested by no more than moderate incomplete paralysis. A higher rating under that DC is therefore not warranted. The Board further finds, however, that a separate 10 percent rating is warranted for loss of part of the skull. The October 1986 pathology report clearly shows that part of the Veteran's skull was completely removed (i.e., the equivalent of removal of both inner and outer tables), and that the area was less than the size of a 25-cent piece (4.619 cm squared), which warrants a separate 10 percent rating under DC 5296. While the Veteran stated in his April 2014 NOD that the loss of part of the skull was from the outer corner of his left eye to his nose, and that this is longer than a 25-cent piece, the Board notes that the rating criteria measure the area of bone loss of the skull in square centimeters, not by length alone, and that in square centimeters, the bone loss is less than the area of a 25-cent piece. Inasmuch as the note to DC 5296 instructs adjudicators to rate intracranial complications separately, the Board emphasizes that the Veteran is being compensated under DC 8205 for his left maxillary nerve neuropathy. The Board also notes that no other Diagnostic Code appears applicable to the impairment caused by the Veteran's service-connected left orbital floor fracture. None of the VA examinations indicate that he has other symptoms for which compensation is warranted. While the Veteran has reported other symptoms including double vision, eye pressure, headaches, trouble breathing, and loss of sense of smell, the Board notes that on objective examination he has not had double vision, that blurry vision has been attributed to a refractive error in his non-service-connected right eye, and that eye pressure measurements were normal. Regarding headaches and trouble breathing, none of the VA examiners of record noted any evidence of past or current symptoms, and there is no evidence in the claims file indicating that the Veteran has ever been diagnosed with either a chronic headache or breathing disorder. Regarding the loss of sense of smell, the Veteran has been awarded service connection and the rating for that disability, as noted, is not on appeal before the Board. Simply put, there is nothing in the evidence to warrant higher or additional separate ratings for the Veteran's left orbital floor fracture. Consideration has also been given to assigning staged ratings. However, at no time during the period in question have the disabilities addressed herein warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board acknowledges that the medical evidence of record in this case consists only of service treatment records and VA examinations, but notes that the Veteran has not reported or identified any private treatment he has received related to the issues on appeal. For the reasons outlined above, the Board finds the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's service-connected left maxillary nerve neuropathy. Accordingly, the appeal of that issue is denied. However, a separate 10 percent rating, but no higher, is warranted for the Veteran's left orbital floor fracture. To that extent, the appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.