BVA9502677 DOCKET NO. 92-54 127 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 30 percent for left facial paresis secondary to Bell's palsy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Margaret L. Peak, Associate Counsel INTRODUCTION The veteran had active service from October 1966 to May 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 1993, the claim was remanded for further development. The file was returned to the Board and docketed in November 1994, and the claim is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran disagrees with the decisions of the RO denying him a disability rating in excess of 30 percent for left facial paresis secondary to Bell's palsy. That rating has been in effect since May 1969, and he asserts that the current manifestations of the disorder are more disabling than recognized by this evaluation. 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. 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 preponderance of the evidence is against a rating in excess of 30 percent for left facial paresis secondary to Bell's palsy. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. Left facial paresis secondary to Bell's palsy is manifested by severe paralysis of the seventh cranial nerve. 3. No unusual or exceptional disability factors have been presented. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for left facial paresis secondary to Bell's palsy have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.951(b), 4.3, 4.7, Part 4, Codes 6276, 8207 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking a disability rating in excess of 30 percent for residuals of Bell's palsy. As an initial matter, the Board finds his claim to be "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say, he has presented a claim that is not implausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the VA's duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). However, that evidence does not warrant the assignment of an increased rating. The veteran was granted service connection for left facial paresis secondary to Bell's palsy from the time of his separation from service in 1969. The disorder was initially rated as 10 percent disabling, but in June 1970, a 30 percent rating was made effective from the date of the veteran's separation. Reports of the examinations upon which this rating was based show left facial paralysis, and that the veteran was unable to close his left eye without difficulty. The left side of the face was held in spasticity, but no evidence of hypesthesia or anesthesia was noted. He had difficulty whistling, but was able to enunciate without difficulty. His tongue protruded a little to the right of the median line. Report of VA neurological examination (April 1970). The veteran's request to increase his rating was received in July 1991. At that time he claimed that his "condition of Bell's Palsy has increased in severity as I am now having to take medication every night of my life to be able to sleep." VA Form 21-4138, Statement in Support of Claim (July 1991). The RO acquired and reviewed outpatient treatment reports from September 1989 to July 1991. In a September 1991 decision, the 30 percent rating was confirmed and continued. The RO noted that the veteran's 30 percent rating was protected by 38 C.F.R. § 3.951(b), and that 30 percent was the maximum schedular rating for his facial paralysis. When this claim was first before the Board, in April 1993, it was noted that the most recent VA examination report was from 1970. Therefore, the claim was remanded to afford the veteran a VA neurological examination to assess the extent of the left facial paresis. The examiner was asked to comment on the extent of cranial nerve involvement, and to discuss the extent of impairment attributable to each cranial nerve. On remand, the veteran was first examined in June 1993. At that time he was noted to have an asymmetric face. He denied headache, nausea, vomiting, double vision, dysarthria, dysphagia, hemisensory or hemimotor symptoms, vertigo, hearing loss, tinnitus, any injury to the head or ear infections. He was taking Valium once a day, every third day or so. On cranial nerve examination, decreased pinprick, touch and cold sensation were noted on the left half of the face. Tuning fork testing showed impaired hearing on the left side. The frontalis muscle, the orbicularis oculi, and orbicularis oris were all weak on the left side compared to the right side. The veteran had developed contracture of the muscles on the left side which moved poorly compared to those on the right side. Taste sensations were checked on the tongue using salt and sugar. The veteran appreciated both the salt and sugar sensations on the left side, however, the effect was delayed. Specific involvement information included involvement of the seventh nerve on the left side causing paralysis of the facial muscles on the left side. There was involvement of a sensory branch of the fifth nerve on the left side, possibly affecting the hearing on the left side. Taste sensation on the left half of the tongue was impaired. The examiner noted that because of the suspicion of sensory and hearing impairment on the left side, a cerebellopontine tumor had to be ruled out, as well as other pathological processes. He therefore recommended magnetic resonance imaging (MRI) of the brain with special emphasis on the brain stem. The diagnoses were seventh nerve palsy on the left side; and possible involvement of the sensory branch of the fifth nerve and hearing impairment on the left side. A second neurological examination was conducted in December 1993. At that time he used glasses to correct the vision in the left eye, which tended to water when exposed to windy conditions. He tended to chew on his right side, to avoid food getting caught in the buccal mucosa and dribbling from the left side of the mouth. He again reported taking Valium every three or four days because of a feeling of tenseness in the face as though involuntarily smiling. On physical examination, his speech was clear. He did show some tendency towards contracture of the intrinsic face muscles on the left side, including the forehead and lower facial musculature. There appeared to be some slight synkinetic movements in the left face. He did not have crocodile tears when his mouth watered. There was some minimal tic of the left lower face when blinking. There was no evidence of diplopia, and fundus appeared to be flat; however spontaneous pulsations were not truly appreciated. Tympanic membranes were difficult to see because of cerumen. Facial sensation showed decreased pinprick and light touch, heat and cold appreciation and also decreased vibration on the left head. There appeared to be decreased pinprick and light touch on the entire left side of the body. Cerebellar examination disclosed no dysmetria. Taste was appreciated bilaterally. He was able to close his left eye voluntarily with only minimal weakness. Minor to moderate weakness was noted in the left lower face. The veteran denied facial pain, though hearing was slightly depressed on the left side when presented with loud stimulus. The examiner's impression was that the seventh nerve on the left was involved, probably with some contracture. There was no evidence of ongoing neuritis or neuralgia, no impairment, otherwise of limbs, coordination or balance, or speech. There was no sixth nerve involvement, no evidence of axial cerebral, brainstem or spinal cord involvement. The lower cranial nerves appeared normal, including IX-XII. It was noted that loss of taste was compatible with Bell's palsy. There was no ongoing suspicion of malignancy on a clinical basis. After that examination, also in December 1993, the veteran underwent an MRI of the brain and internal auditory canals with and without contrast. The internal auditory canals appeared normal, however, there was a15 millimeter homogeneously enhancing mass in the right parietal region which appeared to be extra- axial in location and was thought most likely to represent an incidental meningioma. In May 1994, the RO continued the 30 percent disability rating for left facial paresis secondary to Bell's palsy. The RO also granted service connection for partial loss of the sense of taste, deciding that this was disability directly due and approximately the result of the service connected disability coded 8207. However, the partial loss of the sense of taste was rated as non-compensably disabling, so the veteran's combined disability rating remained at 30 percent. The appeal was returned to the Board. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). The Board attempts to determine the extent to which the veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 410 (1993). Here, the RO has rated the veteran's left facial paresis as paralysis of the seventh (facial) cranial nerve under Diagnostic Code (DC) 8207 of the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4. Loss of the sense of taste is governed by DC 6276. The evaluation for seventh (facial) cranial nerve paralysis is dependent upon the relative degree of loss of innervation of the facial muscles. A 10 percent evaluation is warranted for moderate incomplete paralysis. A 20 percent evaluation requires severe incomplete paralysis. A 30 percent rating requires complete paralysis. 38 C.F.R. Part 4, Code 8207. The RO found that the facial paralysis was severe, though not complete. Be that as it may, the 30 percent rating for this disorder has been in place since 1969. Where a disability has been continuously rated by the VA at or above any evaluation of disability for 20 years or more, that rating may not be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951(b)(1993). Therefore, the 30 percent rating for facial paralysis remains in effect. There is no indication in the record that the current schedular evaluation for residuals of Bell's palsy is inadequate to evaluate the impairment of the appellant's earning capacity due to the disabilities at issue, and it does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedule of standards. Therefore, the provisions of 38 C.F.R. § 3.321 relating to extraschedular evaluations are not applicable here. The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The Board finds no section that provides a basis upon which to assign a higher disability evaluation. ORDER A disability rating in excess of 30 percent for left facial paresis secondary to Bell's palsy is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.