Citation Nr: 0001667 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 97-05 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a right ankle disability. 3. Entitlement to an increased rating for migraine headaches, the residuals of a skull fracture, currently evaluated as 30 percent disabling. 4. Entitlement to an increased rating for the residuals of alveolar and mandibular fractures, currently evaluated as 20 percent disabling. 5. Entitlement to an increased rating for facial nerve paralysis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from January 1980 to April 1982. This matter came before the Board of Veterans' Appeals (Board) from a July 1996 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut that denied the veteran's application to reopen previously denied claims of entitlement to service connection for a back disability and a right ankle disability, and denied claims for increased evaluations for her service- connected headaches, residuals of a vascular skull fracture, the residuals of alveolar and mandibular fractures, and facial nerve paralysis. A notice of disagreement was received in August 1996. A statement of the case was issued in January 1997. A substantive appeal was received from the veteran in February 1997. A hearing was held at the RO in May 1997. The Board notes that the veteran also perfected an appeal with respect to the RO's July 1996 denial of her claim for an increased (compensable) evaluation for high frequency hearing loss, right. During the May 1997 hearing, however, the veteran withdrew this claim. See 38 C.F.R. § 20.204 (1999) (the transcript of the hearing meets the requirements for such withdrawal). Further, in an October 1997 decision, the RO increased the disability evaluations assigned for the service-connected migraine headaches, the residuals of a skull fracture (formerly characterized as headaches, residuals of a vascular skull fracture) and for the residuals of alveolar and mandibular fractures to 30 and 20 percent, respectively. However, inasmuch as higher evaluations are potentially available for these conditions, and the veteran is presumed to seek the maximum available benefit for a disability, the claims remain viable on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). As such, the issues in appellate status are as listed on the title page of this decision. FINDINGS OF FACT 1. In September and December 1986 decisions, the RO denied service connection for a back disability; the veteran did not appeal either of those denials. 2. New evidence associated with the file subsequent to the December 1986 RO decision, when considered alone or in conjunction with the evidence previously of record, does not indicate that the veteran currently suffers from a back disability that is medically related to her active duty service; thus, such evidence is not so significant that it must be considered (with the other evidence of record) to fairly decide the merits of the claim. 3. In a February 1991 decision, the Board denied service connection for bilateral foot and ankle disabilities. 4. New evidence associated with the file subsequent to the February 1991 Board decision, when considered alone or in conjunction with the evidence previously of record, does not indicate that the veteran currently suffers from a right ankle disability that is medically related to her active duty service; thus, such evidence is not so significant that it must be considered (with the other evidence of record) to fairly decide the merits of the claim. 5. The veteran's service-connected migraine headaches, the residuals of a skull fracture, are manifested by attacks that possibly occur three times a month. 6. The veteran's service-connected residuals of alveolar and mandibular fractures consist of complete union of the fracture site, and temporomandibular dysfunction consisting of difficulty in movement of the mandible due to pain, with inter-incisal and lateral excursion motion at worst limited to 34 mm. and 5 mm. or less. 7. The veteran's service-connected facial nerve paralysis is primarily manifested by paresthesia of the upper lip, and diminished sensation about the left cheek. CONCLUSIONS OF LAW 1. The RO's December 1986 decision that denied the veteran's claim of entitlement to service connection for a back disability is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). 2. New and material evidence to reopen a claim for service connection for a back disability has not been presented. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The Board's February 1991 decision that denied the veteran's claim of entitlement to service connection for right ankle disability is final. 38 U.S.C.A. §§ 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.1100 (1999). 4. New and material evidence to reopen a claim for service connection for a right ankle disability has not been presented. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 5. The criteria for an evaluation in excess of 30 percent for migraine headaches, the residuals of a skull fracture, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Codes 8100, 8405 (1999). 6. The criteria for an evaluation in excess of 20 for the residuals of alveolar and mandibular fractures have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.150, Diagnostic Code 9904, 9905 (1999). 7. The criteria for an evaluation in excess of 10 percent for facial nerve paralysis have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8207 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability and right ankle disability To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the veteran's service, or by evidence that a presumption period applied. See 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service, e.g., one year for arthritis. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. § 3.307, 3.309 (1999). In September 1986, the veteran's initial claim for service connection for a back disability was denied by the RO. The RO noted that the veteran's service medical records made no mention of a back disability or problems, and that there was no record of back treatment in the file until July 1986 (it was noted that a mild scoliotic curve was noted in a May 1982 X-ray report). The RO further noted that the veteran was not diagnosed with a back disability during recent treatment. In December 1986, the RO again denied this claim, noting that reports of current back treatment received did not show service incurrence or aggravation of a back disability. Among the relevant evidence reviewed in both decisions were VA outpatient treatment records that noted the veteran's complaints of low back pain with spasm and assessments of persistent low back pain, and the veteran's service medical records that revealed no complaints, diagnosis, or treatment pertaining to a back disability or injury in service. Although notified of the August and December 1986 decisions in the same month of each decision, the veteran did not appeal either decision. Hence, those decisions are final. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). In February 1991, the Board denied the veteran's initial claim for service connection for a bilateral foot disability, to include the ankles; the Board will focus on the decision as it pertained to a right ankle disability, as this is the disability at issue in this current matter. The Board noted that the veteran's service medical records reflected that she had complaints pertaining to her feet in February 1980 and was assessed with bilateral Achilles tendon irritation or tendinitis; and that the same month she sustained a traumatic injury to the left ankle, and was treated with gel casting of the ankles. The Board further noted that there was no indication of further treatment or complaints of ankle problems during the veteran's remaining two years of service, and that the earliest indication of post-service treatment of the right ankle was not until 1988 (the Board notes that the veteran sustained a ligamentous injury to the ankle in July 1988). The Board concluded that the veteran's ankle symptomatology during service was acute and transitory, resolved without residual disability, and was not related to the current ankle disabilities. Significantly, none of the contemporaneous evidence reviewed in making the February 1991 decision indicated a medical relationship between service and the right ankle injury. As the veteran has not appealed or requested reconsideration of the Board's February 1991 decision, that decision is final. See 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104(a), 20.1100 (1999). Final decisions are not subject to revision on the same factual basis. If, however, "new and material" evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991 & Supp. 1999). In April 1996, the veteran submitted an application to reopen the claims for service connection for a low back disability and for right ankle disability. In July 1996, the RO denied the petition, and this appeal ensued. In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the United States Court of Appeals for Veterans Claims (hereinafter the Court), held that the United States Court of Appeals for the Federal Circuit (Federal Circuit), in Hodge v. West, 155 F.3d 1356 (Fed Cir 1998), articulated a three- step process for consideration of a previously denied claim: first it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening, it must be determined whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, the adjudicator may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See also Winters v. West 12 Vet. App. 203 (1999) (en banc). "New and material" evidence is evidence not previously submitted, not cumulative or redundant, and which by itself, or along with evidence previously submitted, is so significant that it must be considered to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (a) (1999); Hodge; see also Evans v. Brown, 9 Vet. App. 273 (1996). Furthermore, the Court has stated that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board is required to give consideration to all of the evidence received since the last disallowance of these claims on any basis, or, in this case, since the RO decision dated in December 1986 (back disability) and the Board decision dated in February 1991 (right ankle disability). Evans. The evidence associated with the claims folder since each of the decisions under consideration includes VA outpatient treatment records (some of which pre-dated the relevant decision but were not of record at the time), records from the School of Medicine of the University of Connecticut Health Center (Connecticut Health Center), and the veteran's testimony given during a May 1997 RO hearing. VA records reflect that in March 1989, the veteran was seen complaining of low back pain of a few days duration and was diagnosed with a lumbosacral sprain. In November 1990 she was seen for follow-up treatment for a 1988 right ankle sprain, and examination of the ankle revealed mild edema around the lateral malleolus and pain on palpation; the veteran was assessed with pain secondary to the 1988 trauma and poorly resolved soft tissue damage. In December 1990, the veteran was seen complaining of a painful right ankle and indicated that she had sprained the ankle two months prior. She was wearing an ankle brace at the time, and a questionable ankle sprain was assessed; apparently, X-rays taken ruled out a fracture. The veteran also received physical therapy for the ankle in December 1990 and January 1991; reports of therapy note her complaints of right ankle pain and tenderness, including on motion. A May 1991 outpatient treatment record notes a diagnosis of degenerative joint disease of the lumbosacral spine. In February 1993, the veteran was seen complaining of, among other things, back pain. It was noted the previous X-rays showed L4-5 disc disease and that symptoms were not worsening. A September 1993 outpatient treatment record notes a history of back pain. The report of a May 1996 VA neurologic examination indicates that back motion was full, although bending to the right elicited pain in the right leg. A diagnosis of back pain, related to an inservice injury by the veteran, was indicated. In early May 1996, the veteran presented himself to the Connecticut Health Center with a chronic history of low back pain of fifteen years duration. During the examination, the veteran reported continued low back discomfort. Physical examination revealed discomfort to palpation along the paraspinal musculature, limited forward flexion, negative straight leg raising bilaterally, intact deep tendon reflexes and no evidence of motor sensory deficit. The veteran was diagnosed with recurrent lumbosacral muscle strain. In late May 1996, the veteran was seen by Paul S. Cooper, M.D., at the Connecticut Health Center. His history of a chronic right ankle sprain since 1984 was then noted. The veteran indicated that she injured the ankle while delivering mail, and had had no similar type of injury. Physical examination revealed marked restriction of the subtalar joint, significant subtalar pain and sinus tarsi pain. Range of ankle motion was limited, and X-rays showed marked arthrosis. In June 1996, the veteran underwent a subtalar arthrodesis, and was seen for postoperative examinations at this facility in June, July, and August 1996. The report of the August 1996 examination indicates that the ankle was healing well and the veteran only complained of minimal pain. An August 1996 VA outpatient treatment record notes the veteran's history of right ankle surgery, and that she was to be referred for physical therapy. During the May 1997 hearing, the veteran testified that her current right ankle symptoms are the same as those experienced in service, that Dr. Cooper indicated that the her current disability resulted from an "old injury," and that she had explained to him that she had injured the ankle in service. She also testified that Dr. Cooper related that her back disability was caused by the right ankle disability. The Board finds that new and material evidence has not been presented sufficient to reopen either the claim for service connection for a back disability, or the claim for service connection for a right ankle disability. The medical evidence is "new," in the sense that it was not previously considered, however, when presented by itself, or along with evidence previously submitted, it is not so significant that it must be considered to fairly decide the merits of this claim. 38 C.F.R. § 3.156 (a) (1999). Such evidence simply shows that the veteran continues to suffer from a back disability and a right ankle disability, as did the evidence at the time of last final denial of each claim. The newly submitted evidence does not, however, medically demonstrate that the either disability is in any way related to service or to any incident thereof (to include the right Achilles tendon irritation or tendinitis diagnosed in service) or that arthritis of the back or right ankle became manifest to any degree within a year of the veteran's separation from service. Regarding the veteran's insinuation that Dr. Cooper indicated that her current right ankle disability was related to an in- service injury, the Board notes that such is not substantiated by Dr. Cooper's treatment records. In fact, as noted, the veteran referred to a non-service injury during this treatment. In any event, there is no indication that there is a written opinion to that effect, and the veteran's assertion of what Dr. Cooper allegedly told her is not sufficient, in and of itself, to reopen the claim. Such assertion does not constitute a medical opinion as to causation. See Robinette v. Brown, 8 Vet. App. 69 (1995). Moreover, as a layperson without the appropriate medical training or expertise, the appellant cannot competently render a medical opinion to support her claim. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). For those reasons, lay assertions of medical causation, alone, even if new, can never serve as a predicate to reopen a previously disallowed claim. See Moray v. Brown, 5 Vet. App. 211, 214 1993). In view of the foregoing, the Board must conclude that none of the evidence received subsequent to the December 1986 RO decision and the Board's February 1991 decision, when viewed either alone or in light of the evidence previously or record, tends to indicate that any back disability or right ankle disability (respectively), were either incurred or aggravated during the veteran's period of active duty service, or became manifest to a compensable degree within a year of her service. As such, none of the evidence is new and material for the purpose of reopening either of these claims. The Board is aware of no circumstances in this matter that would put the VA on notice of the existence of any additional relevant evidence that, if obtained, would provide a basis to reopen the claim. McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). Furthermore, the Board finds that the duty to inform the veteran of the evidence elements necessary to complete her application to reopen her claim for service connection for a psychiatric disorder have been met. Id; 38 U.S.C.A. § 5103 (West 1991); Graves v. Brown, 8 Vet. App. 522, 524 (1996). Because the veteran has not fulfilled her threshold burden of submitting new and material evidence to reopen her finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As a final point, the Board notes that, in addition to considering whether the veteran had submitted evidence that was new, and relevant and probative, in the July 1996 RO decision and January 1997 statement of the case, the RO also referred to a third criterion (formerly considered by the Board in accordance with the Court's case law) that in order to reopen a claim, the new evidence, when viewed in the context of all the evidence, both new and old, must create a reasonable possibility of a change in outcome of the case on the merits. See Evans, 9 Vet. App. at 283, citing Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). However, the Federal Circuit, in Hodge, held that there was no such legal requirement. See also Elkins. That notwithstanding, the Board finds that the RO's actions are not prejudicial to the veteran, since, for the reasons noted above (i.e., that no new and probative evidence has been submitted), the outcome is the same whether the claims are considered under the test utilized by the RO, or the correct "new and material" standard set forth in 38 C.F.R. § 3.156(a) (1999). Thus, to remand this case to the RO for consideration of the correct legal standard for reopening claims would be pointless and, in light of the above discussion, would not result in a determination favorable to the veteran. See VAOPGCPREC 16-92 (O.G.C. Prec. 16-92), 57 Fed. Reg. 49747 (1992). II. Increased Evaluation Claims As a preliminary matter, the Board finds that the veteran's claims for increased ratings for her service-connected migraine headaches, the residuals of a skull fracture, the residuals of alveolar and mandibular fractures, and facial nerve paralysis are plausible and capable of substantiation and are therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a service- connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with the duty to assist. Id. 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.A. § 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; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. Migraine headaches, the residuals of a skull fracture For historical purposes, it is noted that in February 1983, the RO established service connection for headaches, the residual of a basilar skull fracture, based on a review of the veteran's service medical records which indicated that she was involved in an motor vehicle accident in April 1981 and sustained a basilar skull fracture, and that she complained of headaches thereafter (in June 1981), which were thought to be attributable to the head trauma. This decision was also based on the results of a contemporaneous VA examination that revealed no residuals of the head trauma but that the veteran continued to complain of headaches. Based on these findings, a 10 percent evaluation was assigned for this disability. In April 1996, the veteran submitted a claim for an increased evaluation for her service-connected disabilities. It is again noted that during the course of this appeal, a hearing officer, in a October 1997 decision, increased the disability evaluation assigned for the service-connected (now characterized as) migraine headaches, the residuals of a skull fracture to 30 percent disabling, based on evidence which will be discussed below. Relevant evidence associated with the file with respect to this disability includes reports of VA examinations and outpatient treatment records, and the veteran's testimony given during the May 1997 RO hearing. An April 1996 outpatient treatment record notes a history of migraine headaches. A May 1996 record notes a diagnosis of migraine headaches subsequent to head trauma. The report of a May 1996 VA neurologic examination notes the 1981 motor vehicle accident, the resulting skull base and right temple fracture, and headaches. Headaches were described (apparently by the veteran) as being of the migraine type with nausea and photophobia, alleviated with medication. The veteran was diagnosed with post traumatic headaches one to two times a week. During the May 1997 RO hearing, the veteran testified that light bothers her when she gets migraine headaches, that she experiences vision problems and nausea, and that she takes medication on a daily basis to prevent them from recurring. She noted that she gets headaches a few times a week but that they were not "as severe." Another VA neurologic examination was accomplished in September 1997, the report of which indicates that the veteran began having headaches after the 1981 motor vehicle accident, accompanied by nausea but not vomiting, and that they were bifrontal, accompanied by blurring of vision, feeling of pressure behind the eyes, and were prostrating. The veteran related that medication relieved her headaches, and that she had had three headaches during the previous month (she noted that previously, she had daily headaches, but that medication led to improvement). As a result of this examination, the veteran was diagnosed with headaches consistent with migraine headaches, etiologically related to her head trauma. The examiner noted that these headaches conceivably ("perhaps") occur about three time a month (the examiner noted that the veteran was vague in this regard). The veteran's service-connected migraine headaches, the residuals of a skull fracture are currently rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (1999), which contemplates migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; a 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Prior to the October 1997 hearing officer's decision, this disability was evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Under this code, purely subjective complaints, following trauma, such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304 which provides for dementia due to head trauma. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., resulting from brain trauma are rated under the diagnostic codes specifically dealing with such disabilities. 38 C.F.R. § 4.124a, Code 8045 (1999). Taking into account the medical evidence set out above, the Board finds that the preponderance of the evidence is against a disability evaluation higher than 30 percent for the veteran's migraine headaches, the residuals of a skull fracture, under Diagnostic Code 8100. The Board notes that the objective medical evidence shows that this disability is manifested by migraine headaches that possibly occur three times a month; such findings are consistent with a 30 percent evaluation under Diagnostic Code 8100. The evidence clearly does not show that the veteran suffers from migraine headaches that are very frequent, completely prostrating and prolonged, and productive of severe economic inadaptability. It is noted that the veteran testified that she experienced headaches a few times a week but that they were not as severe when she took medication. With respect to consideration of a higher rating under Diagnostic Code 8045, the Board notes that there is no indication in the medical evidence, nor has it been contended, that the veteran suffers from multi-infarct dementia or purely neurological disabilities (it is noted that service connection has been separately established for facial nerve paralysis due to a nerve injury sustained during the 1981 motor vehicle accident); as such a rating no higher than 10 percent would be warranted under this code. B. The residuals of alveolar and mandibular fractures For historical purposes, it is noted that in February 1983, the RO also established service connection for the residuals of alveolar and mandibular fractures. That decision was based upon a review of the veteran's service medical records, which indicated that she also sustained alveolar and mandibular fractures as a result of the April 1981 accident. A 10 percent evaluation was assigned apparently based on the veteran's complaints of headaches during service and during the contemporaneous VA examination. As noted, in April 1996, the veteran submitted a claim for an increased evaluation for her service-connected disabilities. It is again noted that during the course of this appeal, a hearing officer, in a October 1997 decision, increased the disability evaluation assigned for the service-connected the residuals of alveolar and mandibular fractures to 20 percent disabling, based on evidence which will be discussed below. Relevant evidence associated with the file with respect to this disability includes reports of VA examinations and outpatient treatment records, and the veteran's testimony given during the May 1997 RO hearing. The report of a May 1996 VA dental examination notes the veteran's history of being involved in a motor vehicle accident and sustaining facial trauma, and that several teeth were removed. The veteran's complaint at the time of the examination was that she had to cut her food into small pieces in order to chew it. Objective findings included that the veteran had fair to good oral hygiene, functional and esthetic fixed partial dentures, and that oral soft tissues were within normal limits. The veteran had a slight limitation of jaw opening, with maximal opening 34 millimeters (mm.) from the incisor ledge of number 8 and 24. The examiner noted that these disability symptoms presented a slight (to no) effect on everyday activities. The veteran was diagnosed with facial trauma with loss of teeth and slight limitation of vertical jaw opening. During the May 1997 RO hearing, the veteran testified as a result of the 1981 accident, teeth on the left side of her mouth were pushed into her gums, and that she is currently fit with bridges. She noted that that she has to force and/or concentrate to get her mouth open, and that she can open it about halfway (she also noted that she had recently had oral surgery and was able to open her mouth wider than prior to the surgery). The veteran related this manifestation to the residuals of alveolar and mandibular fractures and her service-connected facial nerve paralysis. She further noted that her jaw sometimes locks and tightens. The report of a July 1997 VA dental examination again notes the veteran's history of being injured in a 1981 motor vehicle accident, and that she fractured her mandible on the right side and fractured and lost teeth on the left side of the mandible and maxilla. During the examination, the veteran's main complaint was of temporal-mandibular joint disturbance on the right side which is painful in the morning but improves as the day progresses. She noted that the disturbance does not cause constant pain, but does cause pain when she masticates her food. Objective findings included that the veteran appeared to have difficulty with movement of the mandible, and that she was missing the following teeth: 1, 9, 10, 12, 13, 16, 17, 19, and 32. It was noted that she has bridges to replace some of these teeth, and can reach an interincisal opening of 40 mm., but with a slow, deliberate, and apparently painful motion. Lateral excursion was limited to 5 mm. or less. It was further noted that X-rays showed a slight amount of bone loss to the veteran's periodontal problems consistent with age, and a complete union of the fracture site, with no loss of bone or evidence of nonunion. X-rays also showed temporomandibular dysfunction most likely the result of trauma. Outpatient treatment records reflect that a September 1997 VA dental examination was within normal limits, with some tenderness in the mouth and minor plague accumulation noted. Hygiene instruction was given. Reports of follow up appointments in September and October 1997 reflect that the veteran was issued a night guard due to the wearing of her teeth and bridgework. The report of the September 1997 VA neurologic examination indicates that the veteran reported continued difficulty in masticating. On physical examination, decreased jaw motion was found to be, most likely, mechanical in nature and not related to a nerve five injury affecting the muscles of mastication. The veteran's service-connected residuals of alveolar and mandibular fractures are currently rated as 20 percent disabling under 38 C.F.R. § 4.150, Diagnostic Code 9904 (1999). This code provides that malunion of the mandible is evaluated on the basis of the resulting degree of impairment of motion and the relative loss of masticatory function. A 20 percent rating is permitted when the displacement is severe. This disability could also be rated under 38 C.F.R. § 4.150, Diagnostic Code 9905 (1999). A 30 percent evaluation under this code requires limitation of motion of temporomandibular articulation with an inter-incisal range of 11 to 20 mm. A 20 percent evaluation under this code requires limitation of motion of temporomandibular articulation with an inter- incisal range of 21 to 30 mm. A 10 percent rating contemplates limitation of motion of temporomandibular articulation with an inter-incisal range of 31 to 40 mm or a range of lateral excursion from 0 to 4 mm. Taking into account the medical evidence set out above, the Board finds that the preponderance of the evidence is against a disability evaluation higher than 20 percent for the veteran's the residuals of alveolar and mandibular fractures, under Diagnostic Code 9904. The Board notes that the objective medical evidence shows that this disability is manifested by, among other things, a complete union of the fracture site, difficulty in movement of the mandible due to pain, and temporomandibular dysfunction. Given these objective findings and the veteran's complaints of pain on temporomandibular joint movement (including while masticating), the Board finds that the 20 percent evaluation - but no higher - under Diagnostic Code 9904 is appropriate. In reaching the above decision, the Board has considered the pain associated with the veteran's residuals of alveolar and mandibular fractures. In this regard, the Board notes that when evaluating musculoskeletal disabilities, the VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). While, as noted, some functional loss and pain on use has been demonstrated by the evidence with regard to the veteran's temporomandibular joint, this evidence does not reflect functional loss and pain on use related to this disability beyond that already reflected in the 20 percent rating, the highest assignable, under Diagnostic Code 9904. Indeed, the Board finds that an evaluation of 20 percent is warranted primarily because of the functional loss due to pain associated with this disability. With respect to consideration of a higher rating under Diagnostic Code 9905, the Board notes that objective evidence, showing that inter-incisal and lateral excursion motion is at worst limited to 34 mm. and 5 mm. or less, respectively, warrants no more than a 20 percent evaluation under this code (10 percent based on the pure objective findings regarding motion with an additional 10 percent for pain and functional loss). Finally, as it is clear that the veteran has not lost all of her upper or lower teeth, a higher evaluation under 38 C.F.R. § 4.150, Diagnostic Code 9913 was not considered. C. Entitlement to an increased rating for facial nerve paralysis, currently evaluated as 10 percent disabling For historical purposes, it is noted that in September 1983, the RO established service connection for facial nerve paralysis, the result of the 1981 accident, as a disability separate from the already service-connected the residuals of alveolar and mandibular fractures. In addition the veteran's service medical records, this decision was primarily based on the review of a contemporaneous VA examination report, which noted that there was some decreased sensation about the left lower lip, and that the veteran had some trouble speaking. A 10 percent evaluation was assigned based on this examination. As noted, in April 1996, the veteran submitted a claim for an increased evaluation for her service-connected disabilities. Relevant evidence associated with the file with respect to this disability includes reports of VA examinations and the veteran's testimony given during the May 1997 RO hearing. During the May 1997 RO hearing, the veteran testified that she could feel light sensation about her lip and that she experiences difficulty drinking, as liquid rolls out of her mouth; she noted that she usually uses a straw to avoid this latter problem. As noted above, she also testified that she has to force and/or concentrate to get her mouth open, and that she can open it about halfway, which she related to the facial nerve paralysis and the residuals of alveolar and mandibular fractures. The report of the July 1997 dental examination notes the history of nerve damage to the left upper lip from a laceration, with a resulting paresthesia. Objective findings also included paresthesia of the upper lip resulting from nerve damage from the laceration. The September 1997 VA neurologic examination report indicates that the veteran related that she continued to have some numbness about the left side of her face and part of the second division of the trigeminal nerve territory. Physical examination revealed decreased sensation to touch, sharp in the area on the left cheek in the vicinity of the traumatic injury. The II through XII were otherwise unremarkable in detail. Decreased jaw motion, as noted above, was found to be, most likely, mechanical in nature and not related to the nerve five injury affecting the muscles of mastication. The veteran was diagnosed with diminished sensation about the left cheek most likely due to local nerve injury in the vicinity of the trauma rather than to an intracranial injury involving a specific branch of the fifth cranial nerve. The veteran's service-connected facial nerve paralysis is currently rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8207 (1999). Under this code, 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, while a 20 percent evaluation requires severe incomplete paralysis. Taking into account the medical evidence set out above, the Board finds that the preponderance of the evidence is against a disability evaluation higher than 10 percent for the veteran's facial nerve paralysis. The Board notes that the objective medical evidence shows that this disability is primarily manifested by paresthesia of the upper lip and diminished sensation about the left cheek. Such findings establish no more than moderate incomplete paralysis and as such, are consistent with a 10 percent evaluation under Diagnostic Code 8207. It is noted that the VA examiner determined that decreased jaw motion was most likely mechanical in nature and not related to the nerve five injury affecting the muscles; as such, an increased evaluation for this disability is not warranted under 38 C.F.R. § 4.124a, Diagnostic Code 8205 (1999), for paralysis of the fifth cranial nerve (it is pointed out that this manifestation is included in the evaluation established for the service- connected residuals of alveolar and mandibular fractures). D. Conclusion In sum, increased schedular evaluations for the veteran's service-connected migraine headaches, the residuals of a skull fracture, the residuals of alveolar and mandibular fractures, and facial nerve paralysis are not warranted. The Board has considered all of the evidence and finds that it is not so evenly balanced as to warrant application of the benefit-of-the-doubt rule with respect to any claim. See 38 U.S.C.A. § 5107(b) (West 1991). The above determinations are based upon consideration of applicable provisions of the rating schedule. Additionally, however, there is no showing that any of the disabilities under consideration reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. In this regard, the Board notes that none of disabilities is objectively shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors as those outlined above, the Board is not required to remand any of the increased rating claims to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (1999). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER In the absence of new and material evidence, the petition to reopen a claim of service connection for a back disability is denied. In the absence of new and material evidence, the petition to reopen a claim of service connection for a right ankle disability is denied. An increased evaluation for the service-connected migraine headaches, the residuals of a skull fracture is denied. An increased evaluation for the service-connected residuals of alveolar and mandibular fractures is denied. An increased evaluation for the service-connected facial nerve paralysis is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals