Citation Nr: 0813012 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-28 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Evaluation of bilateral sagittal split osteotomy with hydroxyl apatite augmentation of the mandibular alveolar ridge and callous, left mandibular split thickness skin graft. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had service as a Merchant Marine between July 1944 and August 1945. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDING OF FACT Residuals of bilateral sagittal split osteotomy with hydroxyl apatite augmentation of the mandibular alveolar ridge and callous, left mandibular split thickness skin graft include inter-incisal range of motion of 50 millimeters and later excursion of 9 millimeters; there is no bone loss of the mandible, maxilla, or hard palate; there is no functional impairment due to loss of motion and masticatory function; nonunion and severe malunion are not shown. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for bilateral sagittal split osteotomy with hydroxyl apatite augmentation of the mandibular alveolar ridge and callous, left mandibular split thickness skin graft have not been met. 38 U.S.C.A. §§1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.20, 4.149, Diagnostic Codes 9903, 9904, 9905 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in August 2004 discussed the evidence necessary to substantiate the veteran's claim. The evidence of record was listed. The veteran was asked to identify further evidence. He was told how VA would assist him in obtaining evidence supportive of his claim. A November 2007 letter advised the veteran that a VA examination had been requested. He was told how VA determines disability ratings and effective dates. The evidence of record was listed and the veteran was told how VA would assist him in obtaining additional supportive evidence. With respect to the timing of VCAA notice, the Board finds that any defect was harmless error. Although the notices were provided to the veteran both before and after the initial adjudication, fundamental fairness has been preserved. The content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Even when we accept a timing error, which we presume to be prejudicial, the record reflects that he had a meaningful opportunity to participate such that any preadjudicatory notice error did not affect the fundamental fairness of the adjudication now on appeal. The veteran was informed of the decision and of the right to appeal. He did appeal. The rating decision and the SOC explained the reasons for the decision. The veteran voiced his argument in the substantive appeal. Although there was presumed prejudice in the timing error, the adjudication is fundamentally fair. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. The Board observes that the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. The notice provided in August 2004 predated the grant of service connection. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Regardless, if Dingess is not applicable since this issue was post-enactment of VCAA, as stated above, fundamental fairness has been preserved. With respect to VA's duty to assist, identified treatment records have been obtained and associated with the record. VA examinations have been conducted. Neither the veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted. However, the disability did not significantly change and a uniform evaluation is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2007). The assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2007). The rating schedule also provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2007). When there is a question as to which of two evaluations should 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 (2007). In a June 2005 rating decision, the RO granted entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for status post bilateral sagittal split osteotomy with hydroxyl apatite augmentation of the mandibular alveolar ridge and callous of a left mandibular split thickness skin graft. A 10 percent evaluation was assigned. The veteran expressed his disagreement with the assigned evaluation. Review of the record reveals that the veteran underwent bilateral sagittal split osteotomy in 1989, with hydroxylapatite augmentation of the mandibular alveolar ridge six months later. Complete dentures were fabricated in 1990, but the patient was unable to wear the lower denture due to inadequate vestibular and floor of mouth depth. In August 1991 the veteran underwent mandibular vestibuloplasty with lowering of the floor of the mouth. In November 1991 he underwent exploration of the lingual soft tissue due to an indurated area of the mandible. Laser excision of a skin graft callous was conducted in September 2000. The Board observes that a VA examination was conducted in May 2005. The examiner noted that he had not reviewed the medical records. With respect to the physical examination, the examiner indicated that there was loss of the body of the maxilla or mandible, but did not state the extent of that loss. He also reported bone loss in the form of edentulous atrophy, but did not describe the location or extent of that loss. Moreover, the examiner did not address whether there was malunion or nonunion of the mandible. An additional VA examination was carried out in December 2007. The examiner reviewed the history of the veteran's disability. He noted that the veteran was completely edentulous. He stated that there was no loss of the mandible other than normal mild atrophy associated with the edentulous state. There was no functional impairment due to loss of motion and masticatory function loss. Inter-incisal range of motion was noted to be 50 millimeters. Lateral excursion was reported as 9 millimeters. There was no bone loss of the mandible, maxilla, or hard palate. The diagnosis was status post mandibular osteotomy and split thickness skin graft. Residuals of bilateral sagittal split osteotomy with hydroxyl apatite augmentation of the mandibular alveolar ridge and callous, left mandibular split thickness skin graft is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.150, diagnostic code 9904. Under this code, malunion of the mandible warrants a 10 percent rating for moderate displacement, and a 20 percent rating is warranted for severe displacement. A note under this code specifically provides that the rating is dependent on the degree of motion and relative loss of masticatory function. Diagnostic code 9903 provides a 10 percent evaluation for moderate nonunion of the mandible, and a 30 percent evaluation for severe nonunion. Loss of temporomandibular articulation is evaluated under diagnostic code 9905, which provides a 10 percent evaluation for inter-incisal range of 31 to 40 millimeters. A 20 percent evaluation requires inter-icisal range limited to 21- 30 millimeters. Having reviewed the evidence pertaining to the veteran's dental disability, the Board has concluded that an evaluation in excess of 10 percent is not warranted. In this regard, the Board notes that there is no loss of the mandible other than mild loss associated with the veteran's edentulous state. There is no loss of the maxilla or hard palate. There is no functional impairment due to loss of motion and masticatory function loss. Inter-incisal range of motion is 50 millimeters, and lateral excursion is 9 millimeters. There is no evidence of nonunion. Likewise, there is no evidence indicating severe malunion. In summary, the evidence demonstrates an absence of loss of motion or masticatory function that would support a higher evaluation. The Board notes that the veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that an evaluation in excess of 10 percent is not for application. ORDER Entitlement to an evaluation in excess of 10 percent for bilateral sagittal split osteotomy with hydroxyl apatite augmentation of the mandibular alveolar ridge and callous, left mandibular split thickness skin graft is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs