Separate disability ratings are permitted if the symptomatology for each claimed condition is not duplicative of or overlapping with the symptomatology of the other conditions.
A veteran seeking an increased rating for facial injuries incurred during military service appealed a Board of Veterans' Appeals decision that denied separate ratings for disfigurement, painful scars, and facial muscle damage. Although the Board conceded the veteran qualified for individual ratings under three different diagnostic codes, it refused to combine them to avoid pyramiding. The Court held that under 38 C.F.R. § 4.14, separate ratings are permitted if the symptomatology for each claimed condition is not duplicative of or overlapping with the symptomatology of the other conditions. Because the veteran's disfigurement, pain, and mastication issues were distinct, the Court reversed the decision.
At page 261 Preventing pyramiding of overlapping disability ratings93 citing casesstating that the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition
- Rocco v. Perciavalle v. Denis McDonough, No. 17-3766 (Vet. App. Dec. 3, 2021).published In February 1994, the Court decided Esteban v. Brown, holding that separate ratings were warranted for disfiguring facial scars, painful facial scars, and facial muscle damage resulting in mastication problems because "none of the symptoma…
- 200330-86041, No. 200330-86041 (Board of Vet. App. Mar. 31, 2021).unpublishedEsteban v. Brown, 6 Vet.
- Herman O. Bailey v. Robert L. Wilkie, 33 Vet. App. 188 (Vet. App. 2021).published(holding that use of the plural "disabilities" in a regulation required consideration of multiple disabilities when assigning an extraschedular evaluation)
- 200127-55673, No. 200127-55673 (Board of Vet. App. Dec. 31, 2020).unpublished(VA may not assign multiple ratings for duplicative or overlapping symptomatology.)
- 190705-12644, No. 190705-12644 (Board of Vet. App. Mar. 31, 2020).unpublishedHowever, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14 ; Esteban v. Brown, 6 Vet.
- Rocco v. Perciavalle v. Robert L. Wilkie, No. 17-3766 (Vet. App. Sept. 27, 2019).published Id. at 259-60.
- 15-17 619, No. 15-17 619 (Board of Vet. App. May 31, 2019).unpublishedEsteban v. Brown, 6 Vet.
- Howard Morgan, Jr. v. Robert L. Wilkie, No. 17-0098 (Vet. App. May 16, 2019).publishedSee Lyles v. Shulkin, 29 Vet.App. 109 (2017); Esteban v. Brown, 6 Vet.App. 259, 261 (1994); VA Gen.
- 181221-1765, No. 181221-1765 (Board of Vet. App. May 10, 2019).unpublishedEsteban v. Brown, 6 Vet.
- 181024-690, No. 181024-690 (Board of Vet. App. Feb. 26, 2019).unpublishedSee 38 C.F.R. § 4.14 ; Esteban v. Brown, 6 Vet.
Show 82 more citing cases
- 12-30 114, No. 12-30 114 (Board of Vet. App. June 27, 2018).unpublishedEsteban v. Brown, 6 Vet.
- 13-08 791, No. 13-08 791 (Board of Vet. App. Feb. 28, 2018).unpublishedIn this case, the Veteran's mental sluggishness and/or mental disturbance has been attributed to her service-connected acquired psychiatric condition and the staged disability ratings for the service-connected acquired psychiatric conditio…
- 12-13 102, No. 12-13 102 (Board of Vet. App. Jan. 31, 2018).unpublishedEsteban v. Brown, 6 Vet.
- 12-07 778, No. 12-07 778 (Board of Vet. App. Nov. 30, 2017).unpublishedEsteban v. Brown, 6 Vet.
- 11-18 109, No. 11-18 109 (Board of Vet. App. Sept. 27, 2017).unpublishedApp. 317, 321 (2006); Esteban v. Brown, 6 Vet.
- 10-15 151, No. 10-15 151 (Board of Vet. App. Aug. 31, 2017).unpublishedEsteban v. Brown, 6 Vet.
- 10-19 143, No. 10-19 143 (Board of Vet. App. July 31, 2017).unpublishedEsteban v. Brown, 6 Vet.
- 12-34 162, No. 12-34 162 (Board of Vet. App. May 31, 2017).unpublishedCir. 2009); Esteban v. Brown, 6 Vet.
- 10-10 523, No. 10-10 523 (Board of Vet. App. Sept. 30, 2016).unpublishedEsteban v. Brown, 6 Vet.
- 10-07 649, No. 10-07 649 (Board of Vet. App. Aug. 31, 2016).unpublished In addition, as limitation of motion of the lumbar spine has been considered under Diagnostic Code 5237, a separate rating under Diagnostic Code 5003 based on the same limitation of motion due to pain or flare ups would constitute pyramidi…
- Sursely v. Peake, 551 F.3d 1351 (Fed. Cir. 2009).published
- Bergman v. Nicholson, 243 F. App'x 590 (Fed. Cir. 2007).unpublished
- Sanders v. West, 13 Vet. App. 491 (Vet. App. 2000).published
- Ellis C. Smith v. R. James Nicholson, 19 Vet. App. 63 (Vet. App. 2005).published
- Stolasz - Anderson v. Nicholson, 19 Vet. App. 355 (Vet. App. 2005).published
- Lawrence M. Tropf v. R. James Nicholson, No. 03-1923 (Vet. App. Apr. 4, 2006).published
- Lawrence M. Tropf v. R. James Nicholson, 20 Vet. App. 317 (Vet. App. 2006).published
- Benny R. Roper v. R. James Nicholson, 20 Vet. App. 173 (Vet. App. 2006).published
- Marvin O. Johnson v. Eric K. Shinseki, 26 Vet. App. 237 (Vet. App. 2013).published
- 06-13 505, No. 06-13 505 (Board of Vet. App. July 31, 2014).unpublished
- 03-01 548, No. 03-01 548 (Board of Vet. App. Oct. 31, 2012).unpublished
- 12-21 092, No. 12-21 092 (Board of Vet. App. Dec. 31, 2014).unpublished
- 10-45 938, No. 10-45 938 (Board of Vet. App. Jan. 30, 2015).unpublished
- 09-37 151, No. 09-37 151 (Board of Vet. App. Jan. 30, 2015).unpublished
- 10-24 709, No. 10-24 709 (Board of Vet. App. Apr. 30, 2015).unpublished
- Ulysses Copeland v. Robert A. McDonald, 27 Vet. App. 333 (Vet. App. 2015).published
- 10-43 540, No. 10-43 540 (Board of Vet. App. May 29, 2015).unpublished
- 10-23 172, No. 10-23 172 (Board of Vet. App. June 29, 2015).unpublished
- 07-13 194, No. 07-13 194 (Board of Vet. App. June 6, 2011).unpublished
- 05-27 539, No. 05-27 539 (Board of Vet. App. June 6, 2011).unpublished
- 06-29 424, No. 06-29 424 (Board of Vet. App. July 31, 2015).unpublished
- 08-16 854, No. 08-16 854 (Board of Vet. App. Aug. 27, 2015).unpublished
- 07-22 953, No. 07-22 953 (Board of Vet. App. Sept. 30, 2015).unpublished
- 10-01 288, No. 10-01 288 (Board of Vet. App. Feb. 29, 2016).unpublished
- 09-46 603, No. 09-46 603 (Board of Vet. App. Feb. 29, 2016).unpublished
- 09-49 239, No. 09-49 239 (Board of Vet. App. Apr. 29, 2016).unpublished
- 11-08 922, No. 11-08 922 (Board of Vet. App. June 30, 2016).unpublished
- 16-16 234, No. 16-16 234 (Board of Vet. App. July 29, 2016).unpublished
- 10-43 296, No. 10-43 296 (Board of Vet. App. Sept. 30, 2016).unpublished
- 11-04 944, No. 11-04 944 (Board of Vet. App. Nov. 30, 2016).unpublished
- 09-28 725, No. 09-28 725 (Board of Vet. App. Nov. 30, 2016).unpublished
- 08-36 330, No. 08-36 330 (Board of Vet. App. Nov. 30, 2016).unpublished
- 12-23 490, No. 12-23 490 (Board of Vet. App. Mar. 31, 2017).unpublished
- 10-29 918, No. 10-29 918 (Board of Vet. App. Apr. 28, 2017).unpublished
- 15-10 831, No. 15-10 831 (Board of Vet. App. May 31, 2017).unpublished
- 09-19 351, No. 09-19 351 (Board of Vet. App. May 4, 2017).unpublished
- Thomas I. Lyles, Jr. v. David J. Shulkin, No. 16-0994 (Vet. App. Nov. 29, 2017).published
- 09-25 019, No. 09-25 019 (Board of Vet. App. June 15, 2017).unpublished
- 12-01 629, No. 12-01 629 (Board of Vet. App. Oct. 31, 2017).unpublished
- 09-32 083, No. 09-32 083 (Board of Vet. App. Oct. 14, 2011).unpublished
- 09-26 669, No. 09-26 669 (Board of Vet. App. Feb. 7, 2011).unpublished
- 08-21 776, No. 08-21 776 (Board of Vet. App. Feb. 7, 2011).unpublished
- 13-12 300, No. 13-12 300 (Board of Vet. App. Dec. 29, 2017).unpublished
- 13-13 623, No. 13-13 623 (Board of Vet. App. May 25, 2018).unpublished
- 04-31 184, No. 04-31 184 (Board of Vet. App. July 27, 2018).unpublished
- 180922-414, No. 180922-414 (Board of Vet. App. Dec. 14, 2018).unpublished
- 07-34 113, No. 07-34 113 (Board of Vet. App. Dec. 5, 2013).unpublished
- 10-33 571, No. 10-33 571 (Board of Vet. App. Apr. 24, 2013).unpublished
- 180918-341, No. 180918-341 (Board of Vet. App. Jan. 22, 2019).unpublished
- 181024-605, No. 181024-605 (Board of Vet. App. Feb. 26, 2019).unpublished
- 181018-685, No. 181018-685 (Board of Vet. App. Feb. 26, 2019).unpublished
- 18-37 652, No. 18-37 652 (Board of Vet. App. July 30, 2019).unpublished
- 14-32 104, No. 14-32 104 (Board of Vet. App. July 30, 2019).unpublished
- 190206-2685, No. 190206-2685 (Board of Vet. App. July 30, 2019).unpublished
- 190402-8079, No. 190402-8079 (Board of Vet. App. Nov. 27, 2019).unpublished
- 190405-8064, No. 190405-8064 (Board of Vet. App. Dec. 31, 2019).unpublished
- 190618-10338, No. 190618-10338 (Board of Vet. App. Feb. 27, 2020).unpublished
- 191018-38054, No. 191018-38054 (Board of Vet. App. Apr. 30, 2020).unpublished
- 190813-26211, No. 190813-26211 (Board of Vet. App. May 29, 2020).unpublished
- 190605-9715, No. 190605-9715 (Board of Vet. App. June 16, 2020).unpublished
- 190916-31047, No. 190916-31047 (Board of Vet. App. Dec. 31, 2020).unpublished
- 201114-120120, No. 201114-120120 (Board of Vet. App. Jan. 29, 2021).unpublished
- 200129-58972, No. 200129-58972 (Board of Vet. App. Mar. 31, 2021).unpublished
- 190731-15574, No. 190731-15574 (Board of Vet. App. July 14, 2021).unpublished
- 200721-98253, No. 200721-98253 (Board of Vet. App. July 31, 2021).unpublished
- 210507-158514, No. 210507-158514 (Board of Vet. App. July 30, 2021).unpublished
- 191118-43863, No. 191118-43863 (Board of Vet. App. Sept. 30, 2021).unpublished
- 15-04 271, No. 15-04 271 (Board of Vet. App. June 4, 2018).unpublished
- Gifford v. Brown, 6 Vet. App. 269 (Vet. App. 1994).published
- Hicks v. Brown, 8 Vet. App. 417 (Vet. App. 1995).published
- Evans v. Brown, 9 Vet. App. 273 (Vet. App. 1996).published
- Colayong v. West, 12 Vet. App. 524 (Vet. App. 1999).published
At page 262 Allowing separate disability ratings for non-overlapping symptoms65 citing cases“none of the symptomatology for any one of the claimed conditions is duplicative of or overlapping with the symptomatology of the other ... conditions.”
- Rocco v. Perciavalle v. Denis McDonough, No. 17-3766 (Vet. App. Dec. 3, 2021).published “none of the symptomatology for any one of these three conditions is duplicative of or overlapping with the symptomatology of the other two conditions”
- 200207-61390, No. 200207-61390 (Board of Vet. App. June 30, 2021).unpublishedSeparate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other...conditions." 38 C.F.R. § 4.14 ; Esteban…
- 190515-20018, No. 190515-20018 (Board of Vet. App. Dec. 31, 2020).unpublishedEsteban v. Brown, 6 Vet.
- 191112-44942, No. 191112-44942 (Board of Vet. App. Aug. 31, 2020).unpublishedEsteban v. Brown, 6 Vet.
- 191118-43962, No. 191118-43962 (Board of Vet. App. June 30, 2020).unpublished Esteban v. Brown, 6 Vet.
- 190111-1940, No. 190111-1940 (Board of Vet. App. June 29, 2020).unpublishedEsteban v. Brown, 6 Vet.
- 191029-42196, No. 191029-42196 (Board of Vet. App. May 29, 2020).unpublishedEsteban v. Brown, 6 Vet.
- 190807-17504, No. 190807-17504 (Board of Vet. App. Mar. 31, 2020).unpublishedEsteban v. Brown, 6 Vet.
- 190622-12045, No. 190622-12045 (Board of Vet. App. Feb. 27, 2020).unpublishedThe evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology fo…
- 191031-41086, No. 191031-41086 (Board of Vet. App. Dec. 31, 2019).unpublishedEsteban v. Brown, 6 Vet.
Show 54 more citing cases
- 190812-19280, No. 190812-19280 (Board of Vet. App. Nov. 27, 2019).unpublishedEsteban v. Brown, 6 Vet.
- 18-26 345, No. 18-26 345 (Board of Vet. App. July 30, 2019).unpublishedEsteban v. Brown, 6 Vet.
- 190504-8622, No. 190504-8622 (Board of Vet. App. July 25, 2019).unpublishedEsteban v. Brown, 6 Vet.
- 181031-1088, No. 181031-1088 (Board of Vet. App. June 25, 2019).unpublishedEsteban v. Brown, 6 Vet.
- 181004-490, No. 181004-490 (Board of Vet. App. Jan. 22, 2019).unpublishedThe evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology fo…
- 180817-149, No. 180817-149 (Board of Vet. App. Jan. 22, 2019).unpublishedEsteban v. Brown, 6 Vet.
- 181004-489, No. 181004-489 (Board of Vet. App. Dec. 14, 2018).unpublishedEsteban v. Brown, 6 Vet.
- 08-35 985, No. 08-35 985 (Board of Vet. App. July 24, 2018).unpublishedSeparate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14…
- 12-22 874, No. 12-22 874 (Board of Vet. App. Aug. 31, 2017).unpublishedSeparate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.…
- 12-12 583, No. 12-12 583 (Board of Vet. App. Aug. 31, 2017).unpublishedEsteban v. Brown, 6 Vet.
- 12-32 771, No. 12-32 771 (Board of Vet. App. Aug. 31, 2017).unpublishedSeparate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14…
- 13-21 943, No. 13-21 943 (Board of Vet. App. June 30, 2017).unpublishedSeparate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14…
- 13-05 332, No. 13-05 332 (Board of Vet. App. Mar. 31, 2017).unpublishedSeparate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14…
- 10-07 987, No. 10-07 987 (Board of Vet. App. Jan. 31, 2017).unpublishedEsteban v. Brown, 6 Vet.
- 11-04 992, No. 11-04 992 (Board of Vet. App. Nov. 30, 2016).unpublishedThe evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology fo…
- 13-13 328, No. 13-13 328 (Board of Vet. App. Nov. 30, 2016).unpublishedThe evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology fo…
- 14-00 918, No. 14-00 918 (Board of Vet. App. Oct. 31, 2016).unpublished Esteban v. Brown, 6 Vet.
- 15-23 050, No. 15-23 050 (Board of Vet. App. Sept. 30, 2016).unpublished Esteban v. Brown, 6 Vet.
- 08-23 495, No. 08-23 495 (Board of Vet. App. May 31, 2016).unpublishedEsteban v. Brown, 6 Vet.
- 08-07 937, No. 08-07 937 (Board of Vet. App. May 31, 2016).unpublishedSeparate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14…
- 07-13 194, No. 07-13 194 (Board of Vet. App. June 6, 2011).unpublished
- 15-10 831, No. 15-10 831 (Board of Vet. App. May 31, 2017).unpublished
- 04-31 184, No. 04-31 184 (Board of Vet. App. July 27, 2018).unpublished
- 181018-685, No. 181018-685 (Board of Vet. App. Feb. 26, 2019).unpublished
- Daniel J. Murray v. Eric K. Shinseki, 24 Vet. App. 420 (Vet. App. 2011).published
- 08-05 248, No. 08-05 248 (Board of Vet. App. July 31, 2014).unpublished
- 07-34 521, No. 07-34 521 (Board of Vet. App. Aug. 29, 2014).unpublished
- 10-08 686, No. 10-08 686 (Board of Vet. App. Oct. 31, 2012).unpublished
- 11-25 866, No. 11-25 866 (Board of Vet. App. Jan. 30, 2015).unpublished
- 13-03 789, No. 13-03 789 (Board of Vet. App. Feb. 27, 2015).unpublished
- 06-07 561, No. 06-07 561 (Board of Vet. App. June 29, 2015).unpublished
- 06-03 167, No. 06-03 167 (Board of Vet. App. Aug. 31, 2011).unpublished
- 10-46 248, No. 10-46 248 (Board of Vet. App. Aug. 27, 2015).unpublished
- 07-26 859, No. 07-26 859 (Board of Vet. App. Aug. 27, 2015).unpublished
- 10-16 634, No. 10-16 634 (Board of Vet. App. Oct. 30, 2015).unpublished
- 07-24 353, No. 07-24 353 (Board of Vet. App. Nov. 30, 2015).unpublished
- Timothy J. Urban v. David J. Shulkin, No. 15-3744 (Vet. App. Sept. 18, 2017).published
- 12-34 039, No. 12-34 039 (Board of Vet. App. Nov. 30, 2017).unpublished
- 14-25 118, No. 14-25 118 (Board of Vet. App. Mar. 16, 2016).unpublished
- 13-06 493, No. 13-06 493 (Board of Vet. App. Jan. 28, 2016).unpublished
- 12-10 117, No. 12-10 117 (Board of Vet. App. Jan. 28, 2016).unpublished
- 11-20 788, No. 11-20 788 (Board of Vet. App. Dec. 29, 2017).unpublished
- 08-19 868, No. 08-19 868 (Board of Vet. App. May 31, 2018).unpublished
- 09-47 795, No. 09-47 795 (Board of Vet. App. Aug. 16, 2012).unpublished
- 11-34 281, No. 11-34 281 (Board of Vet. App. Nov. 29, 2013).unpublished
- Frederick L. Payne v. Robert L. Wilkie, No. 17-3439 (Vet. App. Aug. 9, 2019).published
- 190925-34247, No. 190925-34247 (Board of Vet. App. Apr. 30, 2020).unpublished
- 190722-16144, No. 190722-16144 (Board of Vet. App. Apr. 30, 2020).unpublished
- 200113-69276, No. 200113-69276 (Board of Vet. App. June 16, 2020).unpublished
- 210405-150333, No. 210405-150333 (Board of Vet. App. July 30, 2021).unpublished
- 210310-141788, No. 210310-141788 (Board of Vet. App. July 30, 2021).unpublished
- Edward T. Westervelt v. Douglas A. Collins, No. 23-0024 (Vet. App. Apr. 8, 2025).published
- Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009).published
- Jacob Banschbach v. Denis McDonough, No. 22-6609 (Vet. App. July 26, 2024).published
At page 259 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…1 citing case
- Rocco v. Perciavalle v. Robert L. Wilkie, No. 17-3766 (Vet. App. Sept. 27, 2019).published Id. at 259-60.
v.
Jesse BROWN, Secretary of Veterans Affairs
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[*260] 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 sears were noted, and were diagnosed as 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 sears 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 sears 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] affeet[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 ques[*261]tion 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 overeompensate 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 mil 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[*262] 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 symptomatol-ogy 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.