Citation Nr: 0002842 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 97-25 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Determination of initial rating for hearing loss, currently evaluated as 10 percent disabling. 2. Determination of initial rating for hyperesthesia and paresthesia of the left ear, paresthesia of the left side of the tongue, and drooping of the left eyelid, all due to cranial nerve damage, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant served on active duty from May 1972 to May 1976. The instant appeal as regards the hearing loss claim arose from a July 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama, which granted a claim for service connection for residuals of surgery to the left ear with hearing loss and assigned a 10 percent disability evaluation. The disability was recharacterized to include paresthesia of the left ear in an October 1996 rating decision. The instant appeal as regards the paresthesia of the tongue and the drooping eyelid claim arose from the October 1996 rating decision which granted a claim for service connection for paresthesia of the left side of the tongue secondary to damage to the fifth (trigeminal) cranial nerve and the seventh (facial) cranial nerve. A noncompensable disability evaluation was assigned. That disability was also recharacterized to include mild drooping of the left eyelid in an April 1999 rating decision, and the disability evaluation was increased to 10 percent at that time. As explained below, in light of the U.S. Court of Appeals for Veterans Claims (Court) decision in Fenderson v. West, 12 Vet. App. 119 (1999), and in light of the Board's desire to associate all manifestations of the 7th cranial nerve pathology with the same claim, the Board has recharacterized the claims as stated on the cover page of this decision. FINDINGS OF FACT 1. The appellant's service-connected left ear hearing loss is currently manifested by an average pure tone threshold at 1,000, 2,000, 3,000 and 4,000 hertz of 98.75+ decibels and no speech discrimination ability due to profound hearing loss; and the veteran is not totally deaf in both ears. 2. The appellant's service-connected residuals of a partial lesion of the 7th cranial nerve are currently manifested by a manifested by paresthesia and hyperesthesia of the left ear, paresthesia of the left side of the tongue, and drooping of the left eyelid. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for the service-connected left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (effective prior to June 10, 1999); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100; 64 Fed. Reg. 25,202-210 (1999) (effective June 10, 1999). 2. The criteria for an evaluation in excess of 10 percent for the service-connected residuals of cranial nerve damage have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.124a, Diagnostic Code 8207 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims for increased ratings are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet. App. 78 (1990). That is, he has presented claims which are plausible. Generally, a claim for an increased evaluation is considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). VA has a duty to assist the appellant to develop facts in support of well-grounded claims. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet. App. 78 (1990). VA examinations were performed pursuant to the appellant's claims for benefits. Also, all available service medical records and VA treatment records have been obtained. He has not asserted and there is nothing in the record that shows that there are missing, relevant records. For these reasons, the Board finds that VA's duty to assist the appellant, 38 U.S.C.A. § 5107(a) (West 1991), has been discharged. Furthermore, the undersigned finds that this case has been adequately developed for appellate purposes. A disposition on the merits is now in order. In evaluating the appellant's request for increased ratings, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999). In so doing, it is the Board's responsibility to weigh the evidence before it. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1999). Where there is a question as to which of two evaluations shall 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 (1999). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 1991). A review of the service medical records shows that the veteran had nondisqualifying hearing loss noted on his May 1972 enlistment examination. Left conductive and sensorineural hearing loss was noted in August 1972, and he was given a duty restriction. His left ear was evaluated. He was noted to have a chondral deformity with moderate stenosis and a misplaced incus. An internal auditory meatus was normal. It was noted that the veteran was fully aware of the possibility of a "dead ear", and he consented to an exploratory tympanotomy. In January 1975 he underwent an exploratory tympanotomy with reconstruction of the malleus. A perforation of the tympanic membrane was thereafter noted, and he underwent another tympanoplasty in July 1975 with an otoplasty which set back the left concha. Following the second surgery, the veteran complained of ear pain, tenderness in the suture area, and pain in the mastoid area. His November 1975 separation examination noted severe congenital hearing loss of the left ear and marked destruction of the normal architecture of the left tympanic membrane. It was also noted that the veteran had a congenital anomaly of the Reichert's cartilage. The veteran filed his initial claim for benefits in March 1996, and he reported numbness in the tongue and left outer ear due to the ear operation in service. During a May 1996 mouth and throat examination he reported left ear burning and tingling. The veteran also reported that his hearing had worsened since the operations in service, that he had problems chewing food in that he could not feel anything on the left side, and that he had an inability to taste anything on the left side of his mouth. Examination revealed a normal oral cavity, pharynx, nasopharynx, and hypopharynx. A 3 inch long, well-healed scar was noted on the back of the external left ear. That ear was also markedly smaller than the ear on the right. The impression was malformation and paresthesia of the left pinna and paresthesia of the left side of the tongue due to partial damage to the 7th nerve. The examiner noted that the anterior two-thirds of the left side of the tongue was is supplied by the 7th nerve sensory fibers and that the numbness was due to partial damage to those fibers. In May 1996 the veteran underwent an audio-ear diseases VA examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 105 80 85 105+ 105+ Speech audiometry revealed speech recognition ability of 44 percent in the left ear. The examiner concluded that there was severe to profound, mixed hearing loss in the left ear. Physical examination revealed a smaller left auricle. The external canal was paten, and the left tympanic membrane was intact. However, the normal bony landmarks were distorted. There was no evidence of active middle ear infection or mastoid disease in either ear. Subjective numbness was noted around the left auricle. A July 1996 rating decision granted service connection for residuals of surgery to the left ear with hearing loss, and a 10 percent disability evaluation was assigned. During a September 1996 miscellaneous neurological disorder examination the veteran reported that his left ear was very sensitive. He could not stand anyone touching the ear, and he could not comb his hair. The veteran also reported difficulty chewing and stated that he could only chew and drink on the right side. He reportedly had no problem with taste sensation on the tongue. He reported that any kind of ice cream or cold drinks bothers him on the left side of the tongue. The veteran reported that he had no difficulty swallowing. Neurologically the veteran was alert and oriented, and his speech was clear. Examination of the facial nerves was normal. Cranial nerves were within normal limits except for numbness. There was no facial asymmetry. Movements of the tongue and facial muscles were normal. His reflexes were within normal limits. There was no focal neurological deficit, and examination of the mouth and nose showed no evidence of defects. The impression was paresthesia of the left ear and left side of the tongue secondary to damage to the 5th and 7th cranial nerve. An October 1996 rating decision granted service connection for paresthesia of the left side of the tongue secondary to damage to the 5th (trigeminal) cranial nerve and the 7th (facial) cranial nerve. A noncompensable disability evaluation was assigned. That rating decision also granted service connection for paresthesia of the left ear and included that disability in the 10 percent evaluation assigned for residuals of left ear surgery with hearing loss. The veteran has also complained of pain from the corner of his eye around the ear to the bottom of the jaw. He also has stated that he had difficulty kissing his wife. The Board has also reviewed VA treatment records dated from September 1996 to July 1997 from the Tuscaloosa VA Medical Center (MC). These records include a record which noted that the veteran complained of ear pain. The Board has also reviewed VA treatment records dated from April 1997 to September 1998 from the Birmingham VAMC. A November 1997 magnetic resonance imaging of the brain revealed a lesion in the left auditory canal; however, the nature of the lesion was uncertain. In January 1998 the veteran was issued a hearing aid for the left ear only. A May 1998 record noted that a computer tomography scan had revealed no middle ear bones. The veteran's primary concern was noted to be his dizziness and pain and not his hearing. An August 1998 private electronystagmogram report revealed abnormal findings consistent with a peripheral vestibular lesion. A September 1998 miscellaneous neurological disorders VA examination noted that the veteran was wearing a hearing aid on the left side and that he was employed as a truck operator for a company. He described a throbbing sensation in the left ear several days a week. He reported tingling and numbness on the left side of the tongue and decreased sensation on the left side of the face. He reported that his left eye was drooping and had gradually drooped more since service. His sense of smell was unaffected, and his sense of taste was only affected on the left side of the tongue. Examination revealed a deformed left ear with intact tympanic membrane. The left upper eyelid drooped and caused facial asymmetry. Tongue movements were normal, the throat was clear, and movement of the soft palate was normal. Movement of the mastoid and neck was within normal limits, and speech was clear. Trigeminal nerve examination was normal bilaterally. The impression was left facial nerve weakness due to the 1975 surgery and impaired hearing on the left with dizziness, nausea, and vomiting. A neurology consultation was ordered. The September 1998 report revealed partial lesion of the 7th cranial nerve due to the ear surgery in service. The 7th cranial nerve lesion was manifested by numbness in the left side of the tongue, ear lobe hyperesthesia, hyperacusis of the left ear, and mild dropping of the left eyelid. The report noted that the veteran had never had paralysis of the left side of the face or an increase in tear production in the left eye. There was minimal ptosis of the left upper eyelid and left eyebrow with normal function of the eye and eye muscles. Sensation of the face was found to be totally normal which equated with a normal 5th cranial nerve. On the authorized audiological evaluation in October 1998, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT No response 90 95 105 No response Speech audiometry revealed speech recognition ability was not able to be tested due to profound hearing loss in the left ear. The veteran complained of tinnitus. The conclusion was that the veteran had severe to profound hearing loss in the left ear. A February 1999 cranial nerve examination noted that the veteran was still employed as a truck operator. The veteran's primary concern was dizziness and tinnitus. He also reported complaints of disfigurement of his face due to his eyelid drooping on the left. He also reported excessive watering of the eyes. The conclusions were similar to findings on earlier VA examinations with the exception of linking the veteran's tinnitus and dizziness to his in- service ear surgery. The Board notes that service connection was granted for tinnitus with dizziness in an April 1999 rating decision. However, the disability manifested by tinnitus and dizziness was not an appealed issue; therefore, it will not be addressed in this decision. A March 1999 neurology consultation report to evaluate the left ear numbness and pain noted there was nothing new medically since the September 1998 evaluation. However, the veteran was recommended for a new medication which the examiner thought might help his left ear hyperesthesia. On the authorized audiological evaluation in March 1999, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 105 85 95 105 No response Speech audiometry revealed speech recognition ability was not able to be tested due to profound hearing loss in the left ear. The conclusion was that the veteran had severe to profound hearing loss in the left ear. No significant change was noted since the last VA audiological examination. The report also noted that the veteran reported varying degrees of success with trials of different hearing aids and that there was no indication that medical treatment would improve the hearing situation. The April 1999 rating decision granted an increased evaluation, to 10 percent, for paresthesia of the left side of the tongue and mild drooping of the left eyelid. Left ear hearing loss The Board notes that VA has recently amended the regulations pertaining to the evaluation of hearing loss. These changes became effective June 10, 1999. The changes made to the rating schedule were part of an ongoing effort by the Department to complete a comprehensive review and update of the entire rating schedule on the basis of particular body systems. The intended effects of that action were to ensure that the rating schedule used current medical terminology, to reflect medical advances that occurred since the last review, and to provide unambiguous rating criteria. Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 64 Fed. Reg. 25,202 (1999). The Court has stated that where the law or regulation changes during the pendency of a case, the version most favorable to the veteran will generally be applied. See West v. Brown, 7 Vet. App. 70, 76 (1994); Hayes v. Brown, 5 Vet. App. 60, 66- 67 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). A recent opinion of the VA Office of the General Counsel held that whether the amended mental disorders regulations are more beneficial to claimants than the prior provisions should be determined on a case by case basis. VA O.G.C. Prec. 11-97 (Mar. 25, 1997). The Board finds that while the answers provided in that opinion relate specifically to the amendments made to the portion of the rating schedule addressing mental disorders, the reasoning and analysis set forth in the opinion are equally applicable to other amendments made to the rating schedule, including the recent changes made to the portion of the schedule addressing diseases of the ear and other sense organs. Thus, the Board must first determine whether the amended regulation is more favorable to the claimant than the prior regulation. First, the Board notes that the comments before the amended regulation indicated that there would be "no change in th[e] method of evaluation [of hearing loss]. . . ." Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 64 Fed. Reg. 25,202 (1999). Further, the comments revealed that the regulations were simply "reorganized . . . for the sake of clarity." Id. Finally, as detailed below, the Board has applied the facts of this case to the old and the amended hearing regulations and it does not find that the amended regulation is more favorable to the veteran as under either the old or the amended criteria, the veteran is not entitled to a rating in excess of the currently assigned 10 percent disability evaluation. Under VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992), and Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), the Board may consider regulations not considered by the RO if the claimant will not be prejudiced by the Board's action in applying those regulations in the first instance. The Board notes that prior to certifying the case to the Board, the RO did not have an opportunity to readjudicate the appellant's claim with consideration of the amended rating criteria for hearing loss. Nevertheless, the Board does not find that the veteran will be prejudiced by applying the amended regulations in the first instance in this decision. As noted above, the amended regulations do not demonstrate a significant change as regards the evaluation of the hearing loss claim in this case. This being the case, the Board finds that the statement of the case and the supplemental statements of the case which were issued to the veteran provided him with reasonable notice of how his claim will be evaluated, reliance proposed to be placed on the regulations, and reasonable opportunity for him to respond. The veteran's left ear hearing loss is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 6101 (1998). Under the regulations in effect prior to June 10, 1999, the maximum evaluation for unilateral defective hearing was 10 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85 (1998). Where, as here, the speech discrimination scores were unable to be used, the old ratings schedule provided that the use of a separate table with 11 auditory acuity levels based on puretone averages alone. 38 C.F.R. § 4.85(c), 4.87, Table VIa (1998). As in the instant case, in situations where service connection had been granted only for defective hearing involving one ear, and the appellant did not have total deafness in both ears, the hearing acuity of the nonservice- connected ear was considered to be normal. VAOPGCPREC 32-97. See also Boyer v. West, 12 Vet. App. 142 (1999). In such situations, a maximum 10 percent evaluation was assignable where hearing in the service-connected ear is at Level X or XI. 38 C.F.R. § 4.85 and Part 4, Diagnostic Codes 6100, 6101 (1998). Under the regulations in effect from June 10, 1999, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (1999). Several such examinations were performed in this case. Examinations are to be conducted without the use of hearing aids. Id. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Again, a maximum 10 percent evaluation was assignable where hearing loss was service-connected in one ear only and the veteran was not totally deaf in both ears. 38 C.F.R. § 4.85, Table VII (1999). These levels are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f) (1999). Where, as here, the speech discrimination scores were unable to be used, the amended rating schedule also provided that the use of a separate table with 11 auditory acuity levels based on puretone averages alone. 38 C.F.R. § 4.85(c), Table VIa (1999). The new regulations also provide that where, as here, the puretone threshold at each of the four specified frequencies is 55 or more, the Roman numeral designation for hearing impairment will be taken from either Table VI or Table VIa, "whichever results in the higher numeral." 38 C.F.R. § 4.86(a) (1999). The Board finds that entitlement to an increased evaluation for left ear hearing loss is not warranted under either the old or new regulations. The Board has considered the veteran's argument that his hearing loss has increased. However, the evidence clearly weighs against the assignment of an evaluation in excess of 10 percent this case. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss. The evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The March 1999 VA examination shows that the veteran has an average pure tone threshold of 98.75+ decibels in the left ear, and that speech discrimination could not be tested due to the veteran's profound hearing loss. His October 1998 VA audiological examination revealed the same results. The only possible interpretation of these examination results under both the old and new regulations is that the veteran's hearing loss of the left ear was at least at level X, and that, therefore, the maximum 10 percent rating under the rating schedule was warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100 (1998); 38 C.F.R. § 4.85 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that this claim is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco, 7 Vet. App. at 58. The Board notes that it has recharacterized the issue on appeal in order to comply with the Fenderson Court. In Fenderson, the Court held, in pertinent part, that the RO had never properly provided the appellant with a statement of the case concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson, 12 Vet. App. at 132 (emphasis in the original). The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for the issuance of a statement of the case. Id. As in Fenderson, the RO in this case has also misidentified the issue on appeal as a claim for an increased disability rating for the veteran's service-connected left ear hearing loss, rather than as a disagreement with the original rating award for this condition. However, the RO's correspondence to the veteran has provided the veteran with an adequate discussion of the basis for the RO's assignment of an initial disability evaluation for that disorder. In addition, the veteran's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the veteran in recharacterizing the issues on appeal to properly reflect the veteran's disagreement with the initial disability evaluation assigned to his service- connected left ear hearing loss. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran was dissatisfied with his initial rating for his service-connected left ear hearing loss. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson, 12 Vet. App. at 126. In this case, the RO granted service connection and originally assigned a 10 percent evaluation for his left ear hearing loss as of the day he filed his initial claim for benefits, March 8, 1996. See 38 C.F.R. § 3.400(b)(2)(i) (1999). The Board has reviewed all the evidence dating from the time the veteran filed his initial claim and has determined that at no time from that time to the present has the evidence supported a rating in excess of 10 percent for his service-connected left ear hearing loss. Id.; Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent for a left ear hearing loss; the evidence is not in equipoise as to warrant consideration of the benefit of the doubt rule. 38 C.F.R. § 4.3 (1999). The Board notes that the veteran is currently assigned the maximum rating under the rating schedule for hearing loss which is service-connected in only one ear. Thus, the Board has considered referral of the veteran's case to the Under Secretary for Benefits or Director of the Compensation and Pension Service, for consideration of an extraschedular evaluation. However, under the facts here presented, the Board finds that such referral is not warranted. The evidence and allegations in this case show only that the veteran's hearing impairment is manifested by those problems that are directly addressed by schedular criteria, namely, decreased auditory acuity and interference with speech recognition. No evidence has been presented to show that his disability picture is such that it would produce impairment of earning capacity beyond that reflected in the VA rating schedule, or would affect earning capacity in ways not already contemplated by the schedule. The Board notes that the record shows that the veteran is currently employed as a truck operator, a job he has held with the same company for several years. Neither has evidence has been presented to show that the veteran's case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. In the absence of any such evidence, referral under 38 C.F.R. § 3.321(b)(1) is not warranted. See, e.g., Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Disability manifested by damage to the 7th cranial nerve: Paresthesia of the left ear, paresthesia of the left side of the tongue, hyperacusis of the left ear lobe, and drooping of the left eyelid The appellant's residuals of cranial nerve damage are currently evaluated as 10 percent disabling under Diagnostic Code 8207 for moderate, incomplete paralysis of the 7th (facial) cranial nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8207 (1999). Diagnostic Code 8207 provides a 10 percent rating for moderate, incomplete paralysis, a 20 percent rating for severe, incomplete paralysis, and a 30 percent evaluation for complete paralysis of the nerve. Id. The medical evidence shows that as a result of the damage to the 7th cranial nerve, the veteran has paresthesia of the left ear, paresthesia of the left side of the tongue, hyperacusis of the left ear lobe, and drooping of the left eyelid. The September 1998 neurology consultation report noted these manifestations of a partial lesion of the left facial nerve. He has also complained of burning and tingling and pain in the left ear and face from the eye to the jaw on the left. The Board does not find that the evidence supports a rating in excess of the currently assigned 10 percent disability rating under Diagnostic Code 8207. The aforementioned objective medical evidence is consistent with moderate, incomplete paralysis. The medical evidence does not reveal findings consistent with severe, incomplete paralysis. The Board has considered the application of other Diagnostic Codes. See Esteban v. Brown, 6 Vet. App. 259 (1994). The medical evidence does not show difficulty with smell, speech or problems with the facial or cranial nerves with the exception of the reported numbness. Based on the September 1998 neurological evaluation that found a normal 5th cranial nerve, a compensable rating under Diagnostic Code 8205 is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8205 (1999). The Board has considered the application of 38 C.F.R. § 4.87a, Diagnostic Code 6276 (1999) for disability involving sense of taste as the veteran has reported that he is unable to taste on the left side of his mouth. The Board notes that this Diagnostic Code was, prior to June 10, 1999, found at 38 C.F.R. § 4.87b; however, the text of the regulation is unchanged. Diagnostic Code 6276 states that a 10 percent rating is warranted for complete loss of sense of taste. As the medical evidence, specifically the September 1998 and February 1999 neurological examinations, revealed that the veteran's sense of taste on the right side of his mouth was not impaired, the medical evidence does not show complete loss of sense of taste. Therefore, a separate 10 percent disability evaluation under Diagnostic Code 6276 is not warranted. The veteran has also indicated that he believes an increased evaluation is warranted based on the disfigurement caused by his eyelid drooping. Diagnostic Code 7800 applies to disfiguring scars of the head, face, or neck. Such scars of a slight degree warrant a noncompensable disability evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999). Moderate, disfiguring scars warrant a 10 percent evaluation. Id. Severe scars, especially if producing a marked and unsightly deformity of the eyelids, lips or auricles, warrant a 20 percent evaluation, and complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement warrant a 30 percent evaluation. Id. A September 1996 VA neurological examination found no facial asymmetry. A September 1998 neurology consultation report also noted "mild" dropping of the left eyelid, and a September 1998 neurology examination report noted facial asymmetry as a result. The February 1999 VA neurological examination report noted facial asymmetry due to the drooping eyelid on the left side. The examiner described the drooping as "mild." The Board notes that recent color photographs submitted by the appellant reveal very mild drooping of the left eyelid. Based on the evidence above, the Board deems that the very mild droop of the veteran's left eyelid is not more disfiguring that a scar of slight degree. The disfigurement has repeatedly been described as mild, when it has been noted at all. Thus, the veteran's eyelid droop does not meet the criteria for a compensable rating for disfigurement. The Board finds that a separate compensable rating for disfigurement due to the drooping eyelid is not warranted because the claimed disfigurement is not the equivalent of moderate, disfiguring scars. Thus, the veteran does not meet the criteria for a compensable rating by analogy to Diagnostic Code 7800. Further, there is nothing in the medical evidence to suggest there exists a marked and unsightly deformity of the eyelids or a complete or exceptionally repugnant deformity of one side of the face. The Board notes that it has considered Diagnostic Code 5325 for muscle injury of the facial muscles. Such an injury is to be evaluated for functional impairment as 7th (facial) cranial nerve neuropathy (Diagnostic Code 8207), disfiguring scar (Diagnostic Code 7800), etc. 38 C.F.R. § 4.73, Diagnostic Code 5325 (1999). The minimum rating, if interfering to any extent with mastication, is 10 percent. Id. However, the medical evidence does not show that there has been any muscle injury of the facial muscles. Further, while the veteran complains of problems chewing, the VA examinations consistently found movement of the tongue was normal and that the functioning of the mouth and throat was within normal limits. Therefore, the Board finds that Diagnostic Code 5325 is not for application, and a separate rating for interference with mastication is not warranted. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that this claim is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco, 7 Vet. App. at 58. The Board notes that it has recharacterized the issue on appeal in order to comply with the Fenderson Court. In Fenderson, the Court held, in pertinent part, that the RO had never properly provided the appellant with a statement of the case concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson, 12 Vet. App. at 132 (emphasis in the original). The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for the issuance of a statement of the case. Id. As in Fenderson, the RO in this case has also misidentified the issues on appeal as a claim for an increased disability rating for the veteran's service-connected residuals of cranial nerve damage, rather than as a disagreement with the original rating award for this condition. However, the RO's November 1996 statement of the case provided the veteran with the appropriate, applicable law and regulations and an adequate discussion of the basis for the RO's assignment of an initial disability evaluation for that disorder. In addition, the veteran's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the veteran in recharacterizing the issues on appeal to properly reflect the veteran's disagreement with the initial disability evaluation assigned to his service-connected residuals of cranial nerve damage. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran was dissatisfied with his initial rating for his service-connected residuals of cranial nerve damage. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson, 12 Vet. App. at 126. In this case, the RO granted service connection and originally assigned a 0 percent evaluation for his left eye and left side of tongue paresthesias. However, in an April 1999 rating decision, an increased rating, to 10 percent was granted for that disorder, including the left eyelid droop, as of the day he filed his initial claim for benefits, March 8, 1996. See 38 C.F.R. § 3.400(b)(2)(i) (1999). The Board has reviewed all the evidence dating from the time the veteran filed his initial claim and has determined that at no time from that time to the present has the evidence supported a rating in excess of 10 percent for his service-connected residuals of cranial nerve damage. Id.; Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent for a left ear hearing loss; the evidence is not in equipoise as to warrant consideration of the benefit of the doubt rule. 38 C.F.R. § 4.3 (1999). ORDER Claims for entitlement to increased initial ratings for hearing loss and for residuals of cranial nerve damage, namely hyperesthesia and paresthesia of the left ear, paresthesia of the left side of the tongue, and drooping of the left eyelid, are denied. C. P. RUSSELL Member, Board of Veterans' Appeals