**UNITED STATES COURT OF VETERANS APPEALS**

No. 92-693

[Leonardo A. Esteban, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appellant\'s Motion for Panel Review.

(Decided February 25, 1994 )

*Leonardo A. Esteban, pro se.*

*Robert E. Coy,* Acting General Counsel, *Norman G. Cooper,* Assistant
General Counsel, *Pamela L. Wood*, Deputy Assistant General Counsel, and
*John C. Winkfield* were on the pleadings for appellee.

Before KRAMER, MANKIN, and STEINBERG, *Judges.*

KRAMER, *Judge*: Appellant, Leonardo A. Esteban, appeals an April 29,
1992, decision of the Board of Veterans\' Appeals (Board or BVA) which
denied entitlement to an increased rating for residuals of an injury to
the right side of the face, with residual scars, injury to the facial
muscles, and disfigurement, currently rated as 10% disabling. The Court
has jurisdiction pursuant to 38 U.S.C. § 7252(a). This matter is
currently before the Court on a motion for panel review (motion) of a
decision of this Court dated October 5, 1993. The Court grants
appellant\'s motion and reverses the BVA decision, with direction to the
BVA to award appellant a 30% rating.

**I. FACTUAL AND PROCEDURAL BACKGROUND**

Appellant served on active duty from July 1946 to April 1949, including
service in Japan during World War II. R. at 10. In approximately January
1949, he was injured on the right side of his face in a motor vehicle
accident in Okinawa, and was hospitalized until March 1949. R. at 11-19,
29.

An October 1977 VA disability examination report revealed that appellant
had a history of a fractured bone on the right side of the face due to
the 1949 motor vehicle accident. The doctor observed four scars on the
right side of the face: one on the temple, two in the cheekbone area,
and one near the mouth, all residual of lacerations incurred in the 1949
motor vehicle accident. The report further noted that disfigurement was
slight to moderate, that there was injury to the facial muscles, and
that appellant was experiencing pain on the right side of the face. R.
at 19-22. At some point after this examination (it is unclear from the
record on appeal), appellant was granted service connection under 38
C.F.R. § 4.118, Diagnostic Code (DC) 7800 (1993) (disfiguring scars),
and was rated at 10% (moderately disfiguring).

In August 1987, another VA disability examination was performed on
appellant. The same facial scars were noted, and were diagnosed as
slightly disfiguring. R at. 26-7. On December 11, 1987, the BVA denied
an increase in the 10% rating for disfiguring facial scars on the ground
that the scars were only slightly disfiguring. R. at 28-32.

In July 1988, appellant\'s private physician, Dr. Corsino B. Torno,
issued a medical certificate stating that appellant had paralysis on the
right side of his face. R. at 33. On June 2, 1989, the BVA once again
denied an increase in the 10% rating for disfiguring facial scars. The
Board noted that appellant contended that he experienced numbness in his
face and pain in the areas of the scars, but concluded that \"the
service connected disability by its nature is static\" and that no
further examination would be necessary. R. at 37.

In June 1991, Dr. Torno issued another medical certificate indicating
that appellant had impaired sensation in the right side of his face and
disfiguring scars. R. at 38. In September 1991, appellant obtained
another VA disability examination. The report reveals that appellant had
four scars due to prior injury, with injury to muscles, difficulty in
mastication, and slight disfigurement. Appellant continued to complain
of pain on the right side of the face. R. at 41-6. On October 31, 1991,
the Regional Office (RO) confirmed its rating decision and denied an
increase in the 10% rating, stating that the evidence confirmed that
appellant\'s condition under DC 7800 was static. R. at 47.

Appellant appealed to the BVA in February 1992. On April 29, 1992, the
BVA again denied an increase in the 10% rating under DC 7800. The Board,
however, conceded that appellant could be rated under any of three DCs:

> The residuals of injury to the right side of \[the\] veteran\'s face
> may be rated on the basis of disfigurement pursuant to \[DC\] 7800, on
> the basis of the scars being tender and painful, pursuant to \[DC\]
> 7800 \[sic\], *or* on the basis of muscle injury to the facial muscles
> pursuant to \[DC\] 5325.

R. at 6 (emphasis added). As to the disfigurement, the Board concluded
that it was no more than moderate, and therefore appellant was not
entitled to \"an award in excess of the 10 percent currently assigned.\"
*Id.* As to the painful and tender scars, the Board concluded that \"the
veteran\'s complaints . . . are compatible with superficial scars that
are tender and painful on objective demonstration \[so as to\] warrant a
10 percent disability rating.\" *Id.* Finally, the Board stated that
appellant had an \"injury to the facial muscles . . . \[which\]
affect\[s\] mastication,\" (R. at 4) and concluded that \"\[t\]he 10
percent disability rating currently assigned is also consistent with an
injury to the facial muscles, pursuant to \[DC\] 5325.\" R. at 6.
However, the Board determined that appellant may be rated under only one
of the DCs, as opposed to all three, because \"the evidence of record
shows that the residual of an injury to the right side of the veteran\'s
face is compatible with, but does not meet any of the schedular criteria
for a rating higher than 10 percent.\" *Id.*

**II. PERTINENT LAW**

In order to be service connected for a disability, it must be
established that the disability was incurred in or aggravated by
service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (1993). The rating schedule
for each disability represents, as far as can practicably be determined,
the average impairment in earning capacity, resulting from each
disability and its residual conditions, in civil occupations. *See* 38
U.S.C. § 1155; 38 C.F.R. § 4.1 (1993). Where there is a question as to
which of two evaluations are to be applied, the higher evaluation will
be assigned if the disability picture more nearly approximates the
criteria required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (1993). Except as otherwise provided in the
rating schedule, all disabilities, including those arising from a single
disease entity, are to be rated separately, and then all ratings are to
be combined pursuant to 38 C.F.R. § 4.25 (1993).

One exception provided for is the anti-pyramiding provision of 38 C.F.R.
§ 4.14 (1993), which states that evaluation of the \"same disability\"
or the \"same manifestation\" under various diagnoses is to be avoided.
In *Brady v. Brown*, 4 Vet.App. 203 (1993), this Court faced the issue
of whether a veteran may receive separate ratings for a psychiatric
disorder and physical symptoms associated with the disorder. The BVA
denied separate ratings, concluding that rating the conditions
separately would compensate the veteran twice for the same disorder.
*Id.* at 205-06. The Court interpreted 38 U.S.C. § 1155 as implicitly
containing the concept that \"the rating schedule may not be employed as
a vehicle for compensating a claimant twice (or more) for the same
symptomatology; such a result would overcompensate the claimant for the
actual impairment of his earning capacity\" and would constitute
pyramiding. *Id.* at 206. The opinion further stated that the VA
cautioned against this \"pyramiding of disabilities\" in 38 C.F.R. §
4.14. *Id.*

The Court in *Brady* then applied 38 C.F.R. § 4.132, DCs 9500-11 , Note
(2) (1993), another exception to the rule that all disabilities are to
be rated separately, which states:

> When two diagnoses, one organic and the other psychological or
> psychoneurotic, are presented covering the organic and psychiatric
> aspects of a single disability entity, *only one percentage rating
> will be assigned under the appropriate diagnostic code determined by
> the rating board to represent the major degree of disability.*

(Emphasis added.) Based on this application, the Court concluded that
the Board\'s determination that the veteran\'s physical symptoms were
manifestations of his psychiatric disorder, and thus may not be rated
twice, was not clearly erroneous. *Brady,* 4 Vet.App. at 206-07.

In *Fanning v. Brown*, 4 Vet.App. 225 (1993), the Court reaffirmed its
reasoning in *Brady, supra,* that pyramiding of disabilities is to be
avoided pursuant to 38 U.S.C. § 1155 and 38 C.F.R. § 4.14. In *Fanning*,
the veteran was seeking separate ratings for a hernia disability under
38 C.F.R. § 4.114, DC 7338 (1993), and a tender and painful scar
associated with a repair to the hernia under 38 C.F.R. § 4.118, DC 7804
(1993). The BVA had refused to grant separate ratings, concluding that a
separate rating for the scar would constitute pyramiding. *Id.* at 231.
The Court, after stating that it is possible for a veteran to have
separate and distinct manifestations from the same injury permitting two
different disability ratings, remanded the matter to the BVA because it
had failed to state \"reasons or bases\" for denying the separate
ratings due to pyramiding. *Id.*; *see* 38 U.S.C. § 7104(d)(1); *Gilbert
v. Derwinski*, 1 Vet.App. 49, 56-57 (1990).

**III. ANALYSIS**

Appellant asserts that he is entitled to separate ratings for his three
facial problems. The Board found that appellant has disfiguring scars;
painful scars; and facial muscle damage resulting in mastication
problems. The BVA conceded that appellant may be rated as 10% disabling
under any of the three diagnostic codes associated with these
conditions, but refused to grant appellant separate ratings under DC
7804 (painful scars) or under DC 5325 (facial muscle injury; 10% rating
\"if interfering to any extent with mastication\"). Thus, as none of the
three DCs in question provide that a veteran may not be rated separately
for the described conditions, pursuant to 38 C.F.R. § 4.25, appellant\'s
conditions are to be rated separately unless they constitute the \"same
disability\" or the \"same manifestation\" under 38 C.F.R. § 4.14.

The BVA concluded that appellant is entitled to a 10% rating for
moderately disfiguring scars under DC 7800. The condition embodied in a
rating under DC 7800 is entirely cosmetic in nature. Such rating does
not contain any component of pain or muscle damage. The critical element
is that *none* of the symptomatology for any one of these three
conditions is *duplicative* of or *overlapping* with the symptomatology
of the other two conditions. Appellant\'s symptomatology is distinct and
separate: disfigurement; painful scars; and facial muscle damage
resulting in problems with mastication. Thus, as a matter of law,
appellant is entitled to combine his 10% rating for disfigurement under
DC 7800 with an additional 10% rating for tender and painful scars under
DC 7804 and a third 10% rating for facial muscle injury interfering with
mastication under DC 5325.

**IV. CONCLUSION**

Based upon the above, appellant\'s motion is GRANTED, and the BVA
decision is REVERSED, and the matter is REMANDED for proceedings
consistent with this opinion. This opinion supersedes the decision in
this matter dated October 5, 1993.