Citation Nr: 22016287 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-45 772 DATE: March 21, 2022 ORDER Entitlement to a rating greater than 10 percent for service-connected paralysis of the 9th cranial nerve is denied. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected 9th cranial nerve has been normal, with no identified symptomatology resulting from impairment of the nerve. CONCLUSION OF LAW The criteria for rating greater than 10 percent for service-connected paralysis of the 9th cranial nerve are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8209. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1981 to October 1991. This matter come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 decision by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, denied a rating greater than 10 percent for service-connected paralysis of the 9th cranial nerve. The Veteran disagreed that decision and subsequently perfected an appeal of the issue to the Board. In October 2020, the Veteran testified at a Board telehearing before the undersigned Veterans Law Judge; a copy of the hearing transcript is of record. The instant matter was then previously before the Board in June 2021 at which time it was remanded for the Veteran to be scheduled for a new VA examination to determine the current severity of his service-connected 9th cranial nerve disability. Upon completion of the requested development, the agency of original jurisdiction (AOJ) issued a rating decision in September 2021 granting service connection for paralysis, right side of face with difficulty chewing (paralysis of the 5th cranial nerve), rated as 10 percent from September 10, 2021; paralysis, left side of face with increased salivation (paralysis of the 7th cranial nerve), rated as 10 percent from September 10, 2021; paralysis, right side of face with increased salivation (paralysis of the 7th cranial nerve), rated as 10 percent from August 5, 2016; paralysis of speech (paralysis of the 10th cranial nerve), rated as 10 percent from September 10, 2021; paralysis of turning head left against resistance (paralysis of the 11th cranial nerve), rated as 10 percent from September 10, 2021; paralysis of tongue, right side (paralysis of the 12th cranial nerve), rated as 10 percent from September 10, 2021; and paralysis of tongue, right side (paralysis of the 12th cranial nerve), rated as 10 percent from September 10, 2021. The AOJ then issued a supplemental statement of the case (SSOC) that same month in which it continued to deny a rating greater than 10 percent for service-connected paralysis of the 9th cranial nerve. That matter was thereafter returned to the Board. Notably, the Veteran has not expressed any disagreement with the initial ratings or effective dates assigned for paralysis of the 5th, 7th, 11th, or 12th cranial nerves. The Veteran's representative similarly has raised no argument with respect to the AOJ's September 2021 decision. See November 2021 Appellate Brief. As such, the Board finds that the issue on appeal is limited to entitlement to a rating greater than 10 percent for service-connected paralysis of the 9th cranial nerve. If the Veteran disagrees with any downstream element (initial rating or effective date) addressed in the September 2021 rating decision, he may file a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) or one of the other review options identified in the October 2021 letter notifying the Veteran of the September 2021 rating decision. Increased Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is sought, generally, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in evaluating a claim for a higher initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims); Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims). The Veteran's service-connected paralysis of the 9th cranial nerve is evaluated as 10 percent disabling under 38 C.F.R. § 4.124a, DC 8209, which pertains to paralysis of the ninth (glossopharyngeal) cranial nerve. In this regard, the Board notes that the glossopharyngeal nerve refers to "either of the ninth pair of cranial nerves that are mixed nerves and supply chiefly the pharynx, posterior tongue, and parotid gland." https://www.merriam-webster.com/dictionary/glossopharyngeal%20nerve. Under DC 8209, a 10 percent rating is assigned for incomplete, moderate paralysis of the 9th cranial nerve. 38 C.F.R. § 4.124a, DC 8209. A 20 percent rating is assigned for incomplete, severe paralysis of the 9th cranial nerve. Id. Lastly, a 30 percent rating is assigned for complete paralysis of the 9th cranial nerve. Id. A review of the record shows that the Veteran was first granted service connection for a speech impediment due to demyelinating disease via rating decision dated in November 1992; a 10 percent rating was assigned under 38 C.F.R. § 4.124a, DC 8209, effective October 26, 1991. In June 2016, the Veteran requested an increased rating for his service-connected 9th cranial nerve disability. Specifically, the Veteran requested that his service-connected disability be evaluated under 38 C.F.R. § 4.114, DC 7202, pertaining to loss of tongue, in whole or in part. The Veteran underwent a VA cranial nerves examination in August 2016. The VA examiner reviewed the record, noting that while in service, the Veteran had progressive dysarthria with tongue mobility and sided paresthesia. It was noted that when examined for cranial nerves 9 and 10 in January 1991, the Veteran had elevation of the palate only on the right, as well as involvement of cranial nerve 12 in that he could not move his tongue to the left side. Upon examination of the Veteran, the examiner indicated that the 5th, 7th, 9th, 10th, and 12th cranial nerves were affected by the Veteran's condition. Regarding signs and symptoms attributable to any condition affecting cranial nerves 5, 7, and/or 9-12, the examiner indicated moderate numbness of the upper face, eye, and/or forehead, moderate numbness of the mid face, moderate numbness of the lower face, and mild numbness of the left side of the mouth and throat. The examiner also noted mild difficulty chewing, swallowing, and speaking, as well as moderate increased salivation. Notably, the examiner did not indicate which symptoms were attributable to which affected cranial nerves. Then, regarding the 9th and 10th cranial nerves, which were stated to involve swallowing, coughing, palate elevation, ability to "say ah", and the gag reflex, the examiner noted normal nerve functioning, left and right. Sensory examination of the 9th cranial nerve similarly revealed that neither the right nor the left side was affected. The examiner went on to describe other findings related to the cranial nerves. Specifically, it was notes that the extraocular muscles were intact, the visual fields were full to confrontation, and the face was asymmetric, with flattening of the nasolabial fold on the right side. The Veteran's eyelid and cheek strength were symmetric, but facial sensation was decreased to light touch, pinprick, and temperature sense on the left side, which symptoms were attributed to the 5th cranial nerve. The Veteran's tongue was midline and the palate elevated symmetrically. His gag reflex was exaggerated on both sides of the tongue. It was also stated that he could taste salt and sugar on the posterior tongue. His hearing was noted to be intact to finger rustling and 128 and 256 Hertz tuning forks. However, he was noted to have problems pronouncing T, but not S or P sibilants. There was also mild dysarthria. The examiner went on to state that the Veteran's disability with his voice was documented to be with cranial nerves 9, 10, and 12, which affects voice and swallowing. However, when comparing the Veteran's current state to his previous examination reports, it was indicated that the Veteran's functioning with regard to the 9th cranial nerve "is actually better in that the palate elevates [sic] symmetrically" and that he "has good bilateral gag, and his taste on the posterior tongue to sweet and salty is intact." It was also noted that the tongue deviation, involving the 12th cranial nerve, is no longer present, but that there was some mild tongue weakness with dysarthria with pronunciation of consonants. The examiner further stated that the Veteran "does not appear to have marked swallowing difficulties, . . . although he is careful with his oral intake." In disagreeing with the AOJ's denial of a rating greater than 10 percent, the Veteran asserted that his choking and gagging had increased over the years. Then, during his October 2020 hearing, the Veteran reported difficulty with swallowing and choking, which had become more severe. He also stated that he had very limited movement of his tongue on the left side, but could move it on the right side. The Veteran also testified that his wife felt as though his speech was worsening. As noted, the Board remanded the matter in June 2021 for the Veteran to be afforded a new VA examination. The Veteran was again examined in September 2021, at which time the Veteran reported that he had been choking more in the last three to four years and woke up gagging every morning. The Veteran stated that the gagging occurs primarily in the morning or any time he would lie down to go to sleep and then wake. Upon examination of the Veteran, the examiner stated that the Veteran's condition involved the 5th, 7th, and 11th, and 12th cranial nerves. Specifically, the examiner indicated numbness, mild difficulty chewing, mild difficulty swallowing, moderate difficulty speaking, mild increased salivation, and diminished sensation on the left side of the face. The examiner further noted that the left eyebrow raised less than the right, the left cheek puffed out more, and the Veteran's smile was slightly less on the left. Additionally, the Veteran was noted to have weakness when turning the head to the left against resistance. The examiner also pointed out that the Veteran had developed a slight slur/dysarthria is serve, which slur was at least as pronounced as what it was, if not more since that time. The examiner stated that the Veteran did have trouble swallowing and is unable to move his tongue from the midline to the left. The examiner also identified which symptoms were tied to which cranial nerve. In this regard, the Board points out that no symptoms were attributed the 9th cranial nerve. Regarding the 9th cranial nerve, the examiner stated that function of that nerve was normal, that the Veteran's gag reflex and cough were normal, and that his palate elevates symmetrically. As to the Veteran's history of cough after laying supine, the examiner stated that that was more consistent with the Veteran's history of gastroesophageal reflux disease. The examiner explained a 9th cranial nerve deficit would manifest as a weaker cough/gag and would not occur only after sleeping. The examiner went on to express her opinion that although the 9th cranial nerve was damaged in 1991, the nerve has since healed, as demonstrated by a normal examination in August 2016 and the fact that the 9th cranial nerve was normal at the time of current examination as well. Regarding the other cranial neuropathies, the examiner stated that those neuropathies had either persisted, worsened, or appeared since the onset of the Veteran's diagnosis of brain disability during service and are more likely than not a result of that same disability because they are similar to or identical with the original deficits and because the same pathology that caused one cranial nerve deficit, in this case, is more likely to be causing the rest. At the outset, the Board notes that because the Veteran's 10 percent rating has been in effect for over 20 years, it is considered to be a protected rating and cannot be reduced unless there is a showing of fraud. 38 U.S.C. § 110; 38 C.F.R. § 3.951(b). Further, a review of the evidence shows that, throughout the appeal period, the Veteran's 9th cranial nerve has been normal. Indeed, the medical evidence of record fails to show that the Veteran has any current symptoms that are attributable to the 9th cranial nerve. Although when examined in August 2016, the examiner indicated involvement of the 9th cranial nerve, the examination pertaining specifically to that nerve was normal. The examiner also did not identify any residual symptoms specific to the Veteran's 9th cranial nerve injury, and the September 2021 examiner similarly found no related symptomatology. Rather, the September 2021 examiner explained that the symptoms experienced by the Veteran are attributable to deficits in the 5th, 7th, and 11th, and 12th cranial nerves. Regarding these symptoms, as noted above, based on the September 2021 examination report, the AOJ awarded separate ratings symptoms involving the 5th, 7th, and 11th, and 12th cranial nerves. The Board has reviewed the findings contained in the VA examination reports, and has considered the Veteran's lay statements, to include his hearing testimony, regarding his symptoms, and finds that the Veteran is now being compensated for all symptoms identified and/or complained of. Accordingly, because the Veteran's 9th cranial nerve has been normal, with no identified associated symptomatology, there is no basis upon which to assign a rating in excess of the currently assigned 10 percent. See 38 C.F.R. § 4.124a, DC 8209. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.