BVA9503395 DOCKET NO. 93-08 712 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased evaluation for residuals of a left parotidectomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and appellant's wife ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from October 1969 to November 1976. This matter comes before the Board of Veterans' Appeals (the Board) from a July 1992 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). This case was remanded in March 1994 for further evidentiary development, which has been accomplished, and for the RO to adjudicate new issues of entitlement to service connection for a psychiatric disorder, claimed as secondary to service-connected residuals of a left parotidectomy, and whether new and material evidence had been received to reopen a claim of service connection for dysphagia (the veteran having previously been notified of rating denials of July 1990 and January 1991. A rating decision of July 1994 denied service connection for a psychiatric disorder as not secondary to service-connected left parotidectomy and held that new and material evidence had been submitted to reopen a claim for service connection for dysphagia, but denied service connection therefor on a de novo basis. A copy of that rating decision was furnished to the veteran with an associated cover letter of July 16, 1994. A supplemental statement of the case (SSOC) was issued on that same date addressing the issues of increased rating for residuals of a left parotidectomy and whether new and material evidence had been submitted to reopen a claim for service connection for dysphagia. In the SSOC the veteran was informed that the issue of entitlement to service connection for a psychiatric disorder (claimed as secondary to service-connected left parotidectomy) was not a part of his appeal and that if he wished to appeal that denial, he had to file a notice of disagreement (NOD) within 60 days. However, no NOD was received. Although the veteran and his representative were not specifically informed in the SSOC that they had to file a substantive appeal as to the "new" issue of whether new and material evidence had been submitted to reopen the claim for service connection for dysphagia, and any denial on a de novo basis if the claim were reopened, they were given such notice in the March 1994 Board remand. However, no substantive appeal as to that issue has been received. Accordingly, an appeal has not been initiated as to the denial of service connection for a psychiatric disorder, claimed as secondary to service-connected left parotidectomy, and an appeal has not been perfected as to the issue of whether new and material evidence has been submitted to reopen a claim of service connection for dysphagia. Thus, the only issue remaining for appellate consideration is entitlement to an increased evaluation for residuals of a left parotidectomy. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's residuals of a left parotidectomy are characterized primarily by dysphagia and constant drainage of the site of the postoperative scar behind the left ear as well as pain and tightness of the left side of his face at the postoperative site. It is asserted that the statement of the VA 1992 examiner that the veteran had no difficulty swallowing a liquid is not true. 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 files. 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 the claim for an increased evaluation for residuals of a left parotidectomy. FINDINGS OF FACT 1. Dysphagia is not part and parcel of the service-connected residuals of a left parotidectomy and may not be considered for rating purposes, nor may nonservice-connected esophagitis or hiatal hernia. 2. The veteran has no postoperative sinus tract or fistula from which food or saliva can drain at the left parotidectomy site but does have Frey's syndrome with sweating at the postoperative site, particularly associated with eating and a nondisfiguring and essentially asymptomatic postoperative scar with only some tenderness at the mid-point of the scar. 3. The residuals of a left parotidectomy do not produce any significant digestive symptomatology but the veteran does have gustatory sweating and discomfort in the left post auricular area without organic neurological changes. CONCLUSION OF LAW An evaluation in excess of 10 percent for residuals of a left parotidectomy is not warranted on either a schedular or extraschedular basis. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.20, 4.27, 4.124, Diagnostic Code 8209 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is plausible and, thus, "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist the veteran in developing all pertinent evidence. In this case, the veteran has challenged the adequacy of the VA April 1992 examination, specifically the remark of the examiner that the veteran did not have observable difficulty swallowing a liquid. However, this relates to the veteran's dysphagia, for which service connection has not been granted and is, thus, not part and parcel of the service-connected residuals of a left parotidectomy and may not be considered for rating purposes. The evidentiary record consists of VA outpatient treatment (VAOPT) records from 1977 until 1992 as well as repeated VA examinations over the years, including more recent VA examinations of June 1990, April 1992, and April 1994. The veteran and his wife had an opportunity to set forth their testimony and contentions at a hearing before the Board in June 1993. Lastly, no additional evidentiary development has been requested. It is otherwise the determination of the Board that the evidentiary record is sufficient in scope and in depth for a fair, impartial and fully informed appellate decision. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When the case was remanded by the Board in March 1994, it was noted that various diagnostic codes had been used to evaluate the service-connected residuals of a left parotidectomy. The disability had been analogously rated as removal of a gallbladder, a benign growth of the digestive system, and as a hiatal hernia. The RO was requested to specify which rating criteria were for use in evaluating the service-connected disability and in the July 1994 rating decision the RO, using a built-up code, cited 38 C.F.R. § 4.118, Diagnostic Code 7803 (1993) as the proper basis for the assignment of a 10 percent evaluation on the basis of a superficial, poorly nourished scar with repeated ulceration. "[The] requirement that Board consider and discuss selection of the diagnostic code is heightened where the disability has been rated as an unlisted condition by analogy to another condition." Horowitz v. Brown, 5 Vet.App. 217, 224 (1993) (citing Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992)). When rating by analogy under 38 C.F.R. §4.20 or when using a built-up code under 38 C.F.R. § 4.27, the diagnostic code used should be explained as well as any inconsistencies, apparent or real, from having used other diagnostic codes in the past, including in the SOC. Shifting diagnostic codes throughout the adjudication process, while perhaps harmless with regard to the decision reached, may create confusion as to the standards and criteria employed in evaluating the claim. Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992). 38 C.F.R. § 4.20 provides for analogous rating "under a closely related disease or injury" and in determining whether disabilities are "closely related" the VA may consider three factors, (1) the "functions affected", (2) the "anatomical localization", and (3) the "symptomatology." All three factors must be addressed and not merely one factor, e.g., the analogousness of symptoms. Lendenmann v. Principi, 3 Vet.App. 345 (1992) (in which the Court suggested that a rating may be made on the analogousness of causes rather than symptoms). "The role of hyphenated diagnostic codes is explained in paragraph 49.18(c)(2) of the VA's Adjudication Procedure Manual, M21-1: 'When a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, the additional code will be shown after a hyphen'." "The first of the hyphenated diagnostic codes ... indicates" the system or bodily part being rated, and the second diagnostic code indicates the most closely analogous disease, injury or disability listed in the rating schedule. Archer v. Principi, 3 Vet.App. 433 (1992). 38 C.F.R. § 4.114, Diagnostic Code 7344 (1994) provides that for new benign growths of any part of the digestive system, exclusive of skin growths, the rating will be based on interference with digestion, using any applicable digestive analogy. 38 C.F.R. § 4.114, Diagnostic Code 7318 (1994) provides that removal of the gall bladder warrants a noncompensable rating when nonsymptomatic. When there are mild symptoms, an evaluation of 10 percent is warranted, and with severe symptoms, a 30 percent rating is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7346 (1994) provides that when a hiatal hernia is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and productive of considerable impairment of health, a 30 percent rating is warranted. With two or more of the symptoms for the 30 percent evaluation but of less severity, a 10 percent rating is warranted. A 60 percent rating is warranted when there are pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.118, Diagnostic Code 7800 (1994) provides that disfiguring scars of the head, face or neck when slight warrant a noncompensable rating. When moderately disfiguring, a 10 percent rating is warranted. When severe, especially if producing a marked and unsightly deformity of eyelids, lips or auricles, a 30 percent rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7803 (1994) provides that superficial, poorly nourished scars with repeated ulceration warrant a 10 percent rating. The 10 percent rating currently assigned under 38 C.F.R. § 4.118, Diagnostic Code 7804 (1994) encompasses superficial, tender scars which are painful on objective demonstration. The veteran has related a history of having sustained a shrapnel wound injury to the left parotid area during military service and has related that this necessitated his left parotidectomy. However, the service medical records reveal that, prior to that surgery in April 1975, an X-ray in March 1975 found that the soft tissue in the region of both parotid glands appeared swollen but without calcification. When initially hospitalized in April 1975 it was noted that he had a two-month history of a slow-growing mass in the left parotid region. A VA X-ray in May 1977 noted some radiopaque densities in the region of the left parotid gland which could be either small foreign bodies or perhaps residual contrast material, if he had had a previous parotid sialogram. In fact, he had a left parotid sialogram in March 1977, only two months prior to the X-ray. There is otherwise no evidence that any disability of the left parotid gland was a result of shell fragment wounds or other external trauma or that he has ever had any retained metallic foreign bodies in the area of the left parotid gland. During his April to June 1975 inservice hospitalization he underwent a left superficial parotidectomy using an "Y" incision. Postoperatively, there was a diagnosis of a "spit fistual" ( after conservative therapy fistula spontaneously ceased). When hospitalized several months later two lymph nodes were removed from the lower portion of the previous incision and in March 1976 he underwent a left tympanic neurectomy with repositioning of the left tympanic nerve and plexus. The service-connected residuals of a left parotidectomy have, in the past, been evaluated on the basis of impairment of digestion and as analogous to a new benign growth of the digestive system, removal of the gallbladder, and a hiatal hernia. However, dysphagia is one of the criteria for the evaluation of hiatal hernia under Diagnostic Code 7346, but, as indicated, service connection has been denied for dysphagia. In recent years the veteran has related having had a history of difficulty swallowing since his inservice left parotidectomy. On the other hand, a review of the contemporaneous VAOPT records since 1977 discloses no complaints of dysphagia or difficulty swallowing prior to 1988. Indeed, a VAOPT of March 1990 reflects that the veteran related having experienced dysphagia for only four years. A VAOPT February 1989 endoscopy revealed mild esophagitis for which the veteran was prescribed Tagamet. VA examination of April 1992 noted that the veteran's complaints of dysphagia were exaggerated, although it was believed some degree of dysphagia was due to sequelae from an old injury. However, as indicated, there is no evidence that the veteran actually sustained shell fragment wounds to the left parotid area during service. Rather, an esophagram, in conjunction with VA examination of April 1994, disclosed narrowing of the distal esophagus which could be secondary to residuals of previous esophagitis, which was documented in 1989. No relationship between the veteran's esophagitis and his service-connected residuals of the left parotidectomy is demonstrated. Similarly, a VAOPT record of July 1985 indicates that an upper gastrointestinal X-ray series had disclosed a small hiatal hernia. This was confirmed on the VA esophagram in conjunction with the VA examination in April 1994. The hiatal hernia, likewise, is not shown to be related to the service-connected residuals of left parotidectomy. In view of the foregoing, it is the determination of the Board that the service-connected residuals of the left parotidectomy do not effect the digestive function and the disability is not anatomically located in the area of the gallbladder or where a hiatal hernia is normally situated. Thus, even though the left parotid gland produces saliva, as the veteran has stated, there is no evidence of any significant diminution in the amount of saliva produced for digestive purposes nor is it shown that residual left parotidectomy produces symptoms similar to those of excision of a gallbladder or a hiatal hernia. Accordingly, an analogous rating of the residuals of a left parotidectomy on the basis of impairment of the digestive system is not appropriate. This is particularly true in light of the fact that there is no clinical evidence, nor is it contended, that the veteran is malnourished or underweight or has ever had melena, hematemesis, or anemia, some of the criteria for evaluating disabilities of the digestive system. Repeated examinations of the postoperative scar over the years disclose that the scar is slightly depressed but well healed. A VAOPT record of July 1979 reflects that the scar was nontender, although the recent VA examination in April 1992 found some minimal tenderness at the mid-portion of the scar. However, the scar is not shown to be poorly nourished or to have even been ulcerated. Similarly, the scar is not shown to cause any disfigurement and is actually posterior to the auricle of the ear, an area not normally visible. In fact, the VA examination in April 1992 found no asymmetry of the veteran's face as a result of the postoperative scar. Consequently, an increased evaluation under Diagnostic Code 7800 is not warranted. Over the years, the veteran has complained of drainage of saliva at the postoperative site behind the left ear. As previously indicated, any fistula in the surgical area during service resolved. There is no post service evidence of a sinus tract or fistula which would account for saliva expressing from the remainder of the left parotid gland out through the skin. Although on VA examination in April 1994 the examiner indicated that the seepage was related to increased glandular secretion and the fistula to the skin after trauma, that examination disclosed no fistula or sinus tract which would allow for such seepage or drainage. A VAOPT record of February 1977 noted the veteran's complaint of drainage of saliva but also found no evidence of an open sinus to account for such drainage. Apparently for this reason he was afforded a sialogram of the left parotid gland on a VAOPT basis in March 1977. That test found that there did not seem to be any deep lobe of the parotid but only a portion of the superficial lobe of the left parotid gland. Using a lemon wedge for stimulation, there was no evidence of a salivary fistula but there was an area of perspiration just behind the lobe of the left ear. The area was about 4 centimeters in diameter and, while localized, the production of moisture was prolific. The opinion was that the veteran had Frey's syndrome which was also noted to be an auriculotemporal syndrome. Frey's syndrome is auriculotemporal syndrome. Dorland's Illustrated Medical Dictionary 1635 (27th ed. 1988). Auriculotemporal syndrome is the appearance of a red area and of sweating on the cheek in connection with eating; seen in lesions of the parotid gland and due to some involvement of the auriculotemporal nerve. Dorland's Illustrated Medical Dictionary 1630 (27th ed. 1988). At the time of the March 1977 VAOPT evaluation it was noted that pressure on the salivary nerves in some way stimulated the sweat glands at mealtimes and that the patient also complained of intermittent pain on the left side of the face but without correlation to eating. A subsequent VAOPT record of June 1977 noted that the particular examiner, as well as another physician, had not been able to substantiate the presence of any fistula. From the foregoing, it is the determination of the Board that the veteran does not have any drainage of saliva through any fistula or sinus tract but rather, the moisture behind his ear of which he complains is no more than perspiration associated with Frey's syndrome. In this connection, on VA examination in January 1977, the veteran complained of some tightening of the left side of the neck, particularly the muscles around his ear, as well as pain upon lifting heavy weight. However, his other complaints of a sensation of blood rushing to his head and almost losing consciousness is not shown to be related to the Frey's syndrome. Likewise, no area of redness behind the left ear is shown, another symptom often associated with Frey's syndrome. In view of the fact that the veteran's symptoms associated with Frey's syndrome appear to be essentially neurological in nature, it appears that the most appropriate evaluation is for the neurological impairment of the 9th cranial (glossopharyngeal nerve). The 9th cranial nerve is more closely situated anatomically to the site of the surgery and, as with Frey's syndrome, relates to sensory function from a neurological standpoint. 38 C.F.R. § 4.124, Diagnostic Codes 8209, 8309, and 8409 (1994) provide that paralysis, neuritis or neuralgia, respectively, of the ninth (glossopharyngeal) cranial nerve warrants a 10 percent rating when incomplete and moderate. A 20 percent rating is warranted when incomplete and severe. A 30 percent rating is warranted when complete. 38 C.F.R. § 4.123 (1994) provides that neuritis of a cranial nerve characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 (1994) provides that neuralgia of a cranial nerve characterized 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. The veteran was afforded a VA neurology evaluation on an outpatient basis in September 1990 to determine whether there was any involvement of the vagus nerve because of his complaint of dysphagia. That examination, in substance, disclosed no neurological abnormalities of his face and his cranial nerves were all normal, except for his taking longer to swallow due to dysphagia. The diagnosis on VA examination in April 1992 was that the cranial nerves were intact, particularly in the area near the vagus nerve, although there might be some irritation about that nerve, but it was unlikely that it was the cause of any major "consequence" in light of the essentially normal examination. In view of the absence of impairment of any reflexes, muscle atrophy or organic changes, the maximum evaluation to be assigned is for moderate incomplete paralysis, neuritis, or neuralgia of the 9th cranial nerve. A similar result would be obtained if the evaluation was made on the basis of impairment of the 7th (facial) cranial nerve under 38 C.F.R. § 4.124, Diagnostic Codes 8207, 8307, or 8407, or impairment of the 10th (pneumogastric, vagus) cranial nerve under 38 C.F.R. § 4.124, Diagnostic Codes 8210, 8310, or 8410 (1994). In sum, the service-connected residuals of a left parotidectomy, to include Frey's syndrome, is most appropriately rated as moderate incomplete paralysis, neuritis, or neuralgia of the 9th cranial nerve and a schedular evaluation in excess of 10 percent is not warranted. In determining whether an extraschedular evaluation in excess of 10 percent is warranted, the Board notes that the veteran has never been hospitalized since service discharge for his residuals of left parotidectomy and that the vast majority of his treatment on an outpatient basis has been for disabilities other than the residuals of the left parotidectomy. Similarly, disregarding his complaint of dysphagia (his primary complaint for which service connection is not in effect) the disorder is not shown to cause marked interference with employment or to otherwise produce an unusual or exceptional disability picture rendering inapplicable the regular schedular rating criteria. In reaching this determination the Board has considered the doctrine of resolving all doubt in favor of the veteran under 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). However, it is the determination of the Board that the preponderance of the evidence is against the veteran's claim and, therefore, there is no doubt to be resolved in his favor. ORDER An increased evaluation for residuals of the left parotidectomy is denied. HOLLY E. MOEHLMANN 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.