93 Decision Citation: BVA 93-21204 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 93-19 139 ) DATE ) ) ) THE ISSUE Entitlement to a compensable disability evaluation for parotitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from May 1946 to May 1949. This matter comes to the Board of Veterans' Appeals (Board) from an August 1992 rating decision of the Los Angeles, California, Regional Office (RO). A notice of disagreement was received in September 1992. A statement of the case was issued in February 1993. A substantive appeal was received in February 1993. A hearing was held before a member of the Board in August 1993. The appeal was received and docketed at the Board in August 1993. The veteran has been represented in his appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in failing to grant a compensable disability evaluation for parotitis. He states that the parotitis is painful, and that he has difficulty opening his mouth and eating. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a disability evaluation of 10 percent for parotitis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's disorder is manifested by swelling and pain in the parotid region, and a limitation of motion of the veteran's jaw. CONCLUSION OF LAW A disability rating of 10 percent for parotitis is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7, Part 4, Code 9999-9905 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION We note that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, we find that he has presented a claim which is plausible. We are satisfied that all relevant facts have been properly developed, and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. In January 1951, the veteran was granted service connection for chronic parotitis, which was assigned a noncompensable evaluation. Department of Veterans Affairs (VA) hospitalization reports dated from April to June 1948, and from June to July 1948 showed a diagnosis of chronic parotitis. In April 1962, the RO assigned a 100 percent disability rating for the veteran's chronic parotitis. VA medical records showed that the veteran was hospitalized in February 1962 for an acute flare-up of his parotitis. In May 1962, the RO restored the noncompensable rating effective April 1962. Medical records indicated that the veteran was discharged from the hospital and that his acute attack of parotitis had resolved. In September 1962, the RO again assigned a 100 percent disability rating for the veteran's parotitis. VA hospital reports showed that he was readmitted to the hospital in June 1962, for painful swelling of the parotid glands. In October 1962, the RO restored the noncompensable rating effective from August 1962. Medical records demonstrated that he was released from the hospital and that the swelling was reduced. In November 1991, the veteran filed his current claim for a compensable disability rating. VA medical records from July to October 1991 were negative for any complaints, diagnoses or treatment of parotitis. The RO denied a compensable evaluation in a rating decision dated in December 1991. Disability ratings are based on schedular requirements which reflect the average impairment of earning capacity occasioned by the current state of a disorder. 38 U.S.C.A. § 1155. Here, the RO has rated the veteran's chronic parotitis under Diagnostic Codes (DC) 7307 and 7344 of the VA Schedule for Rating Disabilities, 38 U.S.C.A. Part 4. Code 7344 provides that benign, new growths of any specified part of the digestive system, exclusive of skin growths, are evaluated on the basis of any resulting interference with digestion using any applicable digestive analogy. Code 7307 provides that a 10 percent evaluation is warranted for chronic hypertrophic gastritis, identified by gastroscope, with small nodular lesions and symptoms. A 30 percent evaluation requires multiple small eroded or ulcerated areas and symptoms. A 60 percent evaluation requires severe hemorrhages, or large ulcerated or eroded areas. Subsequent to the December 1991 rating decision, the RO received VA medical records dated from July 1991 to May 1992. The records indicated that the veteran was treated for squamous cell carcinoma of the floor of the mouth and for chronic parotitis. He received radiation therapy for the cancer, and complained of significant pain in the parotid region. It was noted that he had swelling in the parotid region. In the notice of disagreement, the veteran stated that he continued to have swelling, pain and difficulty eating, due to his parotitis. The veteran also submitted VA medical records dated from April 1992 to July 1993, which indicated that he continued to complain of pain, specifically in the right parotid region. In June 1993, it was noted that he had a history of swelling of the parotids, right greater than the left. In July 1993, it was noted that there was slight swelling of the right parotid. At his hearing before the Board, the veteran testified that the right parotid gland was swollen and painful. He stated that he had difficulty opening his mouth to eat, and that as a result he could eat only soft foods and soup. He stated that he took codeine for the pain. The Board member hearing the case noted that the right parotid gland was swollen at the hearing. The veteran stated that it sometimes swelled even more. We believe that the veteran's disorder would be rated more appropriately under Diagnostic Code 9999 by analogy to Code 9905. That code provides that any definite limitation of motion of the temporomandibular articulation interfering with mastication or speech warrants a 10 percent evaluation. A 20 percent evaluation requires that motion be limited to 1/2 inch (12.7 mm.). A 40 percent evaluation requires that motion be limited to 1/4 inch (6.3 mm.). As the veteran has indicated that his disability consists of pain and difficulty opening his mouth to eat, this code is a better gauge of the veteran's disability than one that evaluates lesions within the digestive tract. Regulations require that where there is a question as to which of two evaluations is to 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. Here, the evidence indicates that the veteran consistently has complained of pain in the right parotid region. His physicians have observed swelling in the parotid region. He stated at his hearing that the parotitis has made it difficult to open his mouth to eat. The RO denied the veteran's claim on the basis that his current parotitis was caused by the radiation therapy for the carcinoma of the mouth. However, there is no medical evidence supporting the RO's holding. Indeed, even if the veteran's disorder was currently exacerbated by the radiation, the disorder is still service connected, and the manifestations must be considered when rating the disorder. We believe that the veteran's complaints of pain combined with his complaint of limitation of motion of his jaw warrants the granting of a minimum schedular evaluation. Therefore, we find that a 10 percent evaluation is warranted for the veteran's parotitis. ORDER A disability rating of 10 percent for the veteran's parotitis is granted, subject to applicable regulations governing monetary awards. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 ANTHONY FAVA CHARLES E. EDWARDS, M.D. H. H. CLARK NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.