Citation Nr: 1120735 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 03-00 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity. 2. Entitlement to a rating in excess of 10 percent for residuals of blunt force trauma of the right ring and little fingers. 3. Entitlement to a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU). 4. Entitlement to service connection for compensation and treatment purposes for disability of the greater palatine nerve affecting sensation to the oral palate. 5. Entitlement to service connection for compensation and treatment purposes of loss of mass of the maxilla. 6. Entitlement to service connection for compensation and treatment purposes for loss of teeth as a result of loss of substance of the body of the maxilla. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active duty service from January 1974 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Specifically, the Veteran appeals: 1) a September 2002 RO rating decision that denied entitlement to a rating in excess of 10 percent for residuals of blunt trauma to the ring and little fingers of the right upper extremity; 2) an August 2003 RO rating decision that granted service connection for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity (the initial rating has since been increased to 50 percent but the Veteran has continued his appeal for a still-higher initial rating); 3) a June 2006 RO rating decision that granted service connection for paresthesias of the greater palatine nerve affecting sensation to the oral palate, but by omissions denied claims for service connection for other dental and neurological disorders, as listed in enumerated issues (4) through (6) on the title page of this decision; and 4) the denial of a entitlement to a TDIU, part and parcel of the increased rating claims on appeal, as expressly adjudicated in a December 2010 supplemental statement of the case. In December 2005, the Board remanded the Veteran's claim for dental disability and increased rating claims for additional development. An August 2007 RO rating decision granted a staged rating of 50 percent for reflex sympathetic dystrophy and ulnar hyperesthesia of the right hand, effective December 28, 2006. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Since the Veteran did not express satisfaction with the rating, the matter remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In correspondence dated in May 2007, the Veteran sought service connection for a jaw disorder, claimed as secondary to the dental disability. The claim includes contentions as to the appropriate rating codes and disability ratings to be assigned, and therefore should be construed as a claim for compensation rather than for dental treatment; further, it constitutes a timely notice of disagreement with a June 2006 RO rating decision for lack of adjudication of these aspects of the Veteran's continuing appeal. The Board referred this matter for proper adjudication by the RO in the March 2008 Board decision. In May 2008, the RO issued a decision denying a claim for treatment of a dental disorder; however, the Veteran's correspondence makes clear that he sought service connection for compensation purposes and any treatment to which he would become entitled by such a grant of service connection. See 38 C.F.R. § 17.161(a),(c) (pertaining to entitlement to VA dental treatment for compensable service-connected dental disability or noncompensable service-connected dental disability adjudicated as due to trauma). The issues on the title page of this decision are phrased accordingly. Also in the March 2008 decision, the Board, in part, granted the Veteran's claim for an increased rating for reflex sympathetic dystrophy and ulnar hyperesthesia to the extent that an initial rating of 50 percent rating was granted for the period from December 24, 2002, to December 28, 2006, and denied the claim for an increased rating for disability of the ring and little fingers of the right hand. In March 2009, the Veteran and VA filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court) to vacate and remand the Board's March 2008 decision regarding the Veteran's claims for a higher initial rating for reflex sympathetic dystrophy of the right upper extremity and a rating in excess of 10 percent for residuals of blunt force trauma of the right ring and little fingers. The Court issued an Order granting the motion, thereby vacating the Board's decision, and remanding the matters to the Board for compliance with the instructions in the Joint Motion. Despite the Court's vacatur of the Board's March 2008 decision that in part granted an increased 50 percent rating for the neurological disorder of the right hand for the period prior to December 28, 2006, that grant survives the Court's action, as the Court does not have jurisdiction to reverse favorable factual findings of the Board. Medrano v. Nicholson, 21 Vet. App. 165 (2007). In February 2010, the case was returned to the Board and the Board remanded the claims to the RO for additional development. The issues of entitlement to an extraschedular evaluation for reflex sympathetic dystrophy of the right upper extremity and disability of the ring and extraschedular evaluation for little fingers of the right hand service are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. With resolution of the doubt in favor of the Veteran, the Veteran's reflex sympathetic dystrophy and ulnar hyperesthesia of the right hand is characterized by severe functional impairment of motion due to or closely analogous to disability of the middle radicular nerve group. 2. The Veteran's disability of the right ring and little finger disorder is approximated by favorable ankylosis and is not characterized by findings meeting or approximating unfavorable ankylosis. 3. The Veteran has disability diagnosed as post-traumatic damage to the palatal nerve, supplying the sensation of the left side of the hard palate, and indentation of the left oral hard palate of the greater palatine nerve affecting sensation to the oral palate, that began during active service as an unintended consequence of an initial molar extraction; the condition is best described as due to dental trauma and was not due to the effects of regular dental treatment, periodontal disease or loss of the alveolar process. 4. The Veteran has loss of mass of the maxilla that began during active service as an unintended consequence of an initial molar extraction; the condition is best described as due to dental trauma and was not due to the effects of regular dental treatment, periodontal disease or loss of the alveolar process. 5. The Veteran has loss of teeth secondary to partial loss of the maxilla and not associated with his minimal loss of the alveolar process. 6. The Veteran is rated in excess of 70 percent disabled and has been unable to secure or follow a substantially gainful occupation due to service-connected disabilities for the period from January 31, 2006, forward. CONCLUSIONS OF LAW 1. With resolution of the doubt in favor of the Veteran, the criteria for an initial schedular rating of 70 percent for reflex sympathetic dystrophy and ulnar hyperesthesia of the right hand are approximated for the full period from December 24, 2002, forward. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8511 (2010). 2. The criteria for a schedular rating in excess of 10 percent for disability of the right ring and little fingers are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5219, 5223, Notes 1 and 2 (2010). 3. The criteria for entitlement to service connection for compensation and treatment for post-traumatic damage to the palatal nerve, supplying the sensation of the left side of the hard palate, and indentation of the left oral hard palate, are met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150, 17.161(a),(c) (2010). 4. The criteria for entitlement to service connection for compensation and treatment for partial loss of the maxilla are met. 38 U.S.C.A. §§ 1110, 1131, 1712, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.381, 3.381, 4.150, 17.161(a), (c) (2010). 5. The criteria for service connection for compensation and treatment for loss of teeth secondary to partial loss of the maxilla are met. §§ 1110, 1131, 1712, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150, 17.161(a),(c) (2010). 6. The criteria for a schedular TDIU are met from January 31, 2006, forward. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Further, pursuant to 38 U.S.C.A. § 5107, interpretive doubt as to laws and regulations at issue is generally to be construed in favor of the claimant. See Brown v. Gardner, 513 U.S. 115 (1994); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in July 2005, with respect to his claims for increased ratings and for service connection for dental and neurological disability of the mouth and cranial nerves; in December 2006 with respect to the same issues addressed in the July 2005 letter; and in February 2010 with respect to his increased rating claims and his claim for a TDIU. In compliance with the duty to notify the Veteran of what information would substantiate his claims and his and VA's responsibilities in obtaining evidence to substantiate the claims. In February 2010 the Veteran was advised that VA uses a Schedule for Rating Disabilities (Schedule) that determines the rating assigned, the criteria for assignment of effective dates of benefits granted, and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment; although not all required notice was provided prior to initial adjudication of the claims, the claims have since been readjudicated by issuance of a supplemental statement of the case. See generally Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that sufficient development has been accomplished for appellate review to proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. Additionally, the Veteran has been afforded VA examinations, to include in April 2002, July 2003, February 2006, July 2006, and December 2006. The VA treatment records and other evidence is sufficient to grant all benefits sought by the Veteran with respect to his claim for service connection for dental and cranial neurological disabilities, and the maximum schedular rating for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, so that further VA examinations for these disabilities are not required for these determinations. Further, it is evident from the medical evidence associated with the claims file that the Veteran does not experience ankylosis of the right ring and little fingers, so that under the schedular rating criteria the next higher rating of 20 percent is not available. Thus, there is no reasonable possibility that further VA examinations or updated VA or private treatment records would result in assignment of higher schedular ratings for these benefits. To the extent higher ratings may be available for the Veteran's service-connected disabilities of the right hand and right upper extremity on an extraschedular basis, as suggested by the Court's March 2009 Order granting a Joint Motion for Remand in this matter, further development and adjudication, including referral to the Director, Compensation and Pension, is directed in the remand section of this decision. As the Board grants the claim for a TDIU on a schedular basis with an effective date consistent with his assertions as to the date he stopped working, no further examination or treatment records are required for adjudication of the claim for a TDIU. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although shortcomings in the duty to assist may arguably exist, they are constitute no more than harmless, nonprejudicial error with respect to the matters decided by the Board; any further notice or development would result only in needless delay in adjudication despite sufficient evidence of record to decide the matters without prejudice to the Veteran. Increased Rating Claims Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2010). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings may also be appropriate for an increased rating (as opposed to initial rating) claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2010). Reflex sympathetic dystrophy and ulnar hyperesthesia of the right hand, currently evaluated at 50 percent disabling The Veteran claimed service connection for a right hand disorder in February 2002. The Veteran's claim was granted in an August 2003 rating decision and a 20 percent disability rating was assigned. The Veteran noted his disagreement with the assigned evaluation, and by rating decision dated in August 2007, a 50 percent evaluation was assigned, effective December 28, 2006. In March 2008, the Board issued a decision granting an earlier effective date of December 24, 2002 for an initial rating of 50 percent for the disorder. The Veteran appealed the Board's March 2008 decision to the Court, and in March 2009 the Court returned the claim to the Board to consider referral for extraschedular consideration. After careful review of the evidence, with resolution of the doubt in favor of the Veteran, the Board presently assigns a 70 percent schedular rating for the Veteran's disorder. For neurological disabilities, evaluations are generally assigned based on whether the paralysis of a particular nerve is complete or incomplete. Diagnostic Code 8511 provides the rating criteria for paralysis of the nerves of the middle radicular group, and therefore, neuritis and neuralgia of those nerves. 38 C.F.R. § 4.124a, Diagnostic Code 8511. Under Diagnostic Code 8511, incomplete paralysis is rated 20 percent when mild, 40 percent when moderate, and 50 percent when severe. A 70 percent rating is warranted for complete paralysis. Complete paralysis contemplates adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist is lost or severely affected. 38 C.F.R. § 4.124a, Diagnostic Code 8511 (2010). The Veteran injured his right hand during active service when a vehicle engine fell on his right hand. As a result of that injury, the Veteran was diagnosed in due course as having reflex sympathetic dystrophy or Complex Regional Pain Syndrome (CRPS) of the right arm. In February 2002, the Veteran sought treatment for complaints of tingling, numbness, pain, and stiffness in the right hand and forearm. An April 2002 medical record revealed findings consistent with a right carpal tunnel syndrome. In May 2002, C.H., M.D. opined that the Veteran had carpal tunnel syndrome and ulnar tunnel syndrome. The Veteran underwent a VA examination in April 2002. A physical examination of the right hand revealed opposition to all fingers to the thumb. The Veteran's hand was weak with the index to thumb finger and he had fairly good strength of the hands, compared with the last finger. At a plastic surgery consult in February 2003, the Veteran was referred to an impairment evaluation. Later in February 2003, the Veteran underwent an impairment evaluation with a physical therapist to determine the extent of his reflex sympathetic dystrophy and ulnar hyperesthesia. A March 2003 letter from the S.W., M.D. rated the Veteran's impairment based on the measurements taken at the February 2003 evaluation. A May 2003 record from the VA Plastic Surgery Clinic noted that the Veteran has a right arm total impairment of 24% and a right hand impairment of 17%. These combine for a whole person impairment of 14%. In a follow-up letter from Dr. S.W., dated in June 2003, Dr. S.W. stated that he gave the Veteran a permanent impairment rating, as a result of the injury sustained in service. The Veteran underwent another VA examination in July 2003. The Veteran was noted to have significant functional limitations of the hand; that the pain level was "5" out of a "10." The examiner noted that the Veteran's right wrist was in a splint; but there was no difference in color or temperature of the hand and no muscle atrophy. The Veteran demonstrated very slow movements of the right hand, and there was a 2 centimeter distance between the tip of the index finger and the median transverse fold of the palm when he attempted to fully flex the fingers. He was noted to have strong radial and ulnar pulse in the right hand. VA treatment records from June 2004 refer to "significant impairment" of the right hand - essentially these records indicate that the Veteran has limited movement of the right hand and wrist due to continued pain. In February 2006, the Veteran underwent surgical release of the right carpal tunnel; right cubital tunnel with anterior subcutaneous transposition of the ulnar nerve and right tennis elbow release with partial lateral epicondylectomy and extensor fascia lengthening. He was examined by VA during the recuperative period, within three days of the surgery, and was reexamined in July 2006 and December 2006. The February 2006 VA examiner opined that the Veteran had complete loss of left median nerve function distal to the wrist, as evidence by his EMG and nerve conduction studies, as well as severe cubital tunnel syndrome of his ulnar nerve at the elbow, and some brachial plexopathy possible at the axilla/shoulder region. He elaborated that time would tell if surgery had improved these conditions, "though with this much chronicity, they are likely permanent." The July 2006 VA examiner found that the Veteran's service-connected disability of the right upper extremity prevented him from shopping, moderately impaired his ability to exercise, prevented him from participating in sports, moderately affected his ability to travel, moderately affected his ability to feed himself, severely affected his ability to bathe, severely affected his ability to dress, moderately affected his ability to toilet, and moderately affected his ability to groom. The December 2006 VA examiner diagnosed the Veteran with a crush injury of the right hand complicated by acute abscess and subsequent reflex sympathetic dystrophy, which resulted in marked functional impairment of the right hand and arm. He noted that the Veteran has sensory abnormalities that exist well beyond the median and ulnar nerve distributions. The examiner also diagnosed bilateral carpal tunnel syndrome and evidence of right ulnar nerve compression at the elbow, although the examiner noted that these disorders may not be due to the crush injury. While the examiner found that the Veteran had nearly full power in his right arm, and full range of motion with pain of the elbow and wrist and shoulder abduction of 90 degrees without pain, he opined that the Veteran has severe functional impairment of the right arm and hand in terms of mechanics and also in terms of pain. (Emphasis added.) Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2010). The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59 (2010). With resolution of the doubt in favor of the Veteran, throughout the period on appeal, the Veteran has experienced severe symptoms due to pain and severe functional impairment of his right arm that approximate the criteria for a 70 percent rating under Diagnostic Code 8511. Pain is a prominent factor in evaluation of the disability and he is prevented or severely impaired in performing certain activities of daily living such as shopping, bathing and dressing; the Board therefore finds that his functional use of the right upper extremity is severely limited due to his service-connected reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity. 38 C.F.R. § 4.124a; DC 8511 (2010). The Board observes that the Veteran's right arm disability is manifested by overlapping symptoms variously diagnosed as affecting the arm and the wrist, and has been found to extend well beyond the ulnar and median nerve distributions. However, the overall symptomatology affects functioning in the same anatomical region of the wrist or hand and is contemplated by Diagnostic Code 8511, resulting in severe functional impairment of use of the arm. Thus, the Board finds that to combine ratings for several such impairments would constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (2010). Accordingly, separate ratings for the arm and wrist symptoms cannot be assigned. With resolution of the doubt in favor of the Veteran, the Board finds that the Veteran's use and function of his right arm are severely affected as a residual of the in-service injury in a manner closely analogous to impairment of the middle radicular group, and that his service-connected disability therefore warrants a 70 percent rating throughout the period on appeal. This is the maximum schedular rating assignable under Diagnostic Code 8511; thus, there is no higher schedular rating for consideration. The matter of extraschedular rating is addressed in the remand section of this decision, below. Increased rating for residuals of blunt force trauma of the right ring and little finger The Veteran asserts that a higher evaluation is warranted for his service-connected injury residuals of the right ring and little finger. He is currently assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5223 for his disability. After carefully considering the evidence of record, the Board finds that the preponderance of the evidence is against the claim for a higher schedular rating and the appeal will be denied. The Veteran was granted service connection for injury residuals of the right ring and little fingers in a November 1984 rating decision. In February 2002, the Veteran filed a claim for an increased rating. A September 2002 rating decision denied that request. The Veteran appealed. The Board issued a decision in March 2008 denying the Veteran's claim for an increased rating. The Veteran appealed the Board's March 2008 decision to the Court, and by Order dated in March 2009 the Court returned the claim to the Board for extraschedular consideration. To warrant a 10 percent evaluation for the ring and little finger, the evidence must demonstrate favorable ankylosis of the ring and little finger for either the major or minor hand. A 20 percent rating is warranted for unfavorable ankylosis of the ring and little finger for either the major or minor hand. 38 C.F.R. § 4.71a, DCs 5219, 5223 (2010). 38 C.F.R. § 4.71a provides that ankylosis or limitation of motion of single or multiple digits of the hand is to be evaluated as follows: for the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal (MP) and proximal interphalangeal (PIP) joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the MP joint has a range of zero to 90 degrees of flexion, the PIP has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion. See 38 C.F.R. § 4.71a, DCs 5216-5230, Note 1 (2010). When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level. Id. at Note 2. Private medical records, dated September 2003, reflect that the Veteran's right ring and little finger had a limited range of motion. Private medical records, dated February 2006, show that the Veteran underwent surgery for a right ulnar nerve release. Four days later the Veteran underwent a VA examination. The Veteran underwent a December 2006 VA examination. The examiner noted that the Veteran's fingers moved very slowly and trembled. Additionally, the examiner reported that the Veteran could not use his right hand to button his shirt or remove his shoes. The examiner concluded that the Veteran's right hand had severe functional impairment, both in mechanics and pain. Favorable ankylosis of the ring and little fingers warrants a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5223 (pertaining to favorable ankylosis of combinations of multiple digits); a higher rating of 20 percent is not available under this diagnosis code for disability the ring and little fingers. After considering the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.71a, DCs 5216-5230, Note 2, the evidence does not indicate that the affected fingers are ankylosed. While the medical evidence shows that the Veteran's use of his ring and little finger is extremely limited as shown by his inability to perform everyday tasks such as unbuttoning his shirt or removing his shoes, an evaluation of 20 percent under DC 5219 is not warranted because unfavorable ankylosis is not shown. At most his ability to move his fingers but with severe impairment of function might be analogous to favorable ankylosis. The Board has also considered whether the Veteran could be afforded a higher evaluation under any other Diagnostic Codes, but finds that no others are applicable. Accordingly, a rating in excess of 10 percent is not warranted and the Veteran's claim is denied. To the extent that separate neurological impairment is present in the fingers due to service-connected reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, analogous to severe impairment of the middle radicular group, this is accounted for in the schedular 70 percent rating assigned in this decision for severe impairment under Diagnostic Code 8511. The 10 percent rating assigned for disability of the ring and little fingers of the right hand is the maximum schedular rating assignable under the most directly analogous rating code, Diagnostic Code 5223. The matter of extraschedular rating is addressed in the remand section of this decision, below. Claims for Service Connection for Dental Disability and Disability of Cranial Nerves Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Under current VA regulations, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Compensation is available for loss of teeth if such is due to the loss of substance of body of the maxilla or mandible, only if such bone loss is due to trauma or osteomyelitis, and not due to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. Id. at Note. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150. However, for service-connected dental disability that is compensable, or that is adjudicated as due to trauma, VA treatment is available as specified at 38 C.F.R. § 17.161(a),(c). See also 38 U.S.C.A. § 1712(a)(1)(C). The Board will find below that the Veteran's claimed dental disabilities were incurred as a result of trauma and not due to the intended consequences of regular dental treatment, or due to periodontal disease or loss of the alveolar process; whether the disabilities are compensable is a matter for adjudication by the RO in the first instance. See generally, Bernard v. Brown, 4 Vet. App. 384 (1993). In October 1975 the Veteran underwent extraction of a tooth at Fort Campbell, Kentucky. Serious complications ensued, resulting in surgeries in the year 1976, referred to in an August 2002 VA examination report as a "dental misadventure." A July 1976 procedure to correct for complications of in-service dental procedures included insertion of a tube in the nose (left nasal astostomy), the making of a new passage for the left maxillary sinus (Caldwell-Luc procedure), bone grafting, and plastic closure of an oral antral fistula of the left maxillary sinus. In May 2006 the RO granted the Veteran's claim for disability related to in-service dental complications insofar as it awarded service connection for disability rated as 10 percent disabling pursuant to Diagnostic Code 8212 for "paresthesias, greater palatine nerve affecting sensation to oral palate (also claimed as a dental condition) associated with [also service-connected] sinusitis, polyp, left maxillary, sinus, oral fistula, left Caldwell-Luc procedure." The Board has closely considered whether the dental impairments incurred by the Veteran in service are more in the nature of residuals of dental trauma or in the nature of the intended effects of regular dental treatment. Generally, service trauma is defined as an injury or wound produced by an external physical force during a service member's performance of military duties. See Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010). The term dental trauma does not include, for example, the intended effects of treatment by VA. See VAOPGCPREC 5-97. More recently, the Court of Appeals for the Federal Circuit has held that dental trauma does not include intended results of proper medical treatment provided by the military. See Nielson, 607 F.3d 802. In Nielson the claimant had certain of his teeth removed due to infection, an intended effect of proper medical treatment. However, the Federal Circuit elaborated in Nielson that that an unintended result of medical treatment due to military negligence or malpractice could be "service trauma" pursuant to 38 U.S.C.A. § 1712(a)(1)(C). In the context of these binding legal precedents, the outcome and course of the treatment reflected in the service treatment records and the term "dental misadventure" as used by the August 2002 VA examiner raise substantial questions as to the adequacy of the treatment provided in service. The nature of the disabilities incurred during complications of dental treatment during service extended well beyond periodontal disease or the alveolar process. The course of treatment resulted in impairment of the maxilla, cranial nerves, and sinuses, and involved procedures such as bone grafting and insertion of tubes to remedy obstructed sinus passages. In the initial extraction of a molar it was not intended or expected that the Veteran would experience post-traumatic damage of two nerve distributions, damage to his sinuses, or bone grafting from the maxilla. Thus the Board will construe these impairments as more in the nature of residuals of dental trauma as opposed to mere periodontal disease, loss of the alveolar process, or intended effects of regular dental treatment, and, in this regard, has resolved factual and interpretive doubt in favor of the Veteran. See 38 U.S.C.A. § 5107(b); Brown v. Gardner, 513 U.S. 115 (1994); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). The Veteran has been very specific as to the additional disabilities for which he seeks service connection in his continuing disagreement with the limited scope of the grant of service connection set forth in the June 2006 RO rating decision. In support of his contentions he has provided pertinent medical documentation, VA examination findings and excerpts from periodicals and treatises. The first of three additional related disabilities for which the Veteran seeks service connection is for disability of the greater palatine nerve affecting sensation to the oral palate. A February 1985 diagnosis from a VA neurologist confirms that the Veteran has post-traumatic damage of the palatal nerve that supplies sensation on the left side of the hard palate. (Emphasis added.) This disability was incurred in active service and the Veteran is competent to describe ongoing symptoms of this disability. A February 2006 VA examiner found upon examination that the Veteran had "decreased sensation to the upper lateral fourth of his left oral hard palate." A July 2007 VA dental note indicates that the Veteran experiences decreased sensation to the oral palate, resulting in periodic burns due to hot foods. Records of dental treatment and examination, including a report of a February 2006 examination, note an associated small indentation in the area of the hard palate. Accordingly, service connection for post-traumatic damage to the palatal nerve, supplying the sensation of the left side of the hard palate, and indentation of the left oral hard palate, as due to inservice dental trauma, is granted. The second of three additional related disabilities for which the Veteran seeks service connection is partial maxilla loss. The Veteran has described the extent of the maxilla loss and the rating that he contends should be assigned for partial maxilla loss; however, these are subjects that must be adjudicated by the RO in the first instance in assigning an initial disability rating. A July 2007 VA panorex X-ray report states that the "remaining max/mand bone substance is minimal." A February 1976 in-service operative report indicates that the Veteran's surgery included an autogenous bone graft from the lateral maxilla to the oral antral fistula. A July 1976 operative report discusses cutting and removing a portion of the bone of the maxilla. Thus, it is evident that the Veteran lost substance of the maxilla during the surgery. Accordingly, entitlement to service connection for partial loss of the maxilla is granted. The third of the three additional related disabilities for which the Veteran seeks service connection is loss of teeth secondary to loss of substance of the maxilla. In February 1985 a VA neurologist noted that the Veteran had "multiple missing teeth with alveolar reabsorption." At a February 2006 VA examination it was noted that the Veteran had "some missing molar teeth on the on the left maxillary side of [the Veteran's] mouth, with a small indication in his hard palate." A July 2007 VA dental treatment note mentions thirteen missing teeth, with alveolar bone loss minimal. The Veteran acknowledges that his teeth lost due to loss of substance of the maxilla has been treated by a suitable prosthesis that restores the masticatory surface, and has expressed that such warrants a noncompensable (0 percent) rating. However, he is correct in asserting that the disability would nevertheless warrant service connection for compensation and treatment purposes as due to trauma. See 38 C.F.R. §§ 4.150, Diagnostic Code 9915, 17.161(c). As noted at Diagnostic Code 9915, were the loss of the teeth the result of loss of the alveolar process or periodontal disease, such would not be considered a disability for VA compensation purposes. However, VA treatment and examination records state that loss of the alveolar process is minimal. As to precisely which teeth have been lost as a consequence of loss of substance of the maxilla is a complex dental question that will be addressed in rating the disability, which, in any event, the Veteran concedes may result in only a zero percent rating (though he is certainly not bound by that assertion should a greater degree of disability be found). Accordingly, entitlement to service connection for loss of teeth secondary to partial loss of the maxilla is granted. Review of the record indicates that the Veteran's claims for service connection for dental disability have at times been characterized as claims service connection for purposes of treatment. However, his contentions have clearly been in the nature of claims for service connection for compensation, and the award of service-connection for purposes of compensation will afford the Veteran greater entitlement to treatment than claims for service connection for treatment purposes only. Cf. 38 C.F.R. §§ 3.381, 17.161. Accordingly, claims previously characterized as ones for service connection for dental disability for purposes of treatment only are rendered moot as an application for a lesser included benefit encompassed by the Board's grants of service connection for compensation and treatment purposes in this decision. Total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU). A TDIU is warranted where the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the rating to 70 percent or more. 38 C.F.R. § 4.16. The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the veteran resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, 1 Vet. App. at 358. The question in a total rating case based upon individual unemployability due to service-connected disability is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Id. (citing 38 C.F.R. §§ 4.1, 4.15). A TDIU requires that the veteran's service-connected disabilities are sufficient to produce unemployability without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The combined ratings for Veteran's service connection disabilities exceed 70 percent for the period from December 24, 2002, forward, and a single disability of the right upper extremity is rated as 70 percent disabling. Thus, the schedular rating criteria for a TDIU are met. See 38 C.F.R. 4.16. The February 2006 VA examiner's post-surgical findings indicated that the Veteran's level of disability was severe, chronic, and likely permanent. A July 2006 VA examiner found that the Veteran's service-connected disability of the right upper extremity prevented him from shopping, moderately impaired his ability to exercise, presented him from participating in sports, moderately affected his ability to travel, moderately affected his ability to feed himself, severely affected his ability to bathe, severely affected his ability to dress, moderately affected his ability to toilet, and moderately affected his ability to groom. The December 2006 VA examiner diagnosed the Veteran with a crush injury of the right hand complicated by acute abscess and subsequent "reflex sympathetic dystrophy," which results in marked functional impairment of the right hand and arm. He noted that the Veteran has sensory abnormalities that exist well beyond the median and ulnar nerve distributions. The examiner also diagnosed bilateral carpal tunnel syndrome and evidence of right ulnar nerve compression at the elbow, although the examiner noted that these disorders may not be due to the crush injury. While the examiner found that the Veteran had nearly full power in his right arm, and full range of motion with pain of the elbow and wrist and shoulder abduction of 90 degrees without pain, he opined that the Veteran has severe functional impairment of the right arm and hand in terms of mechanics and also in terms of pain. (Emphasis added.) The Veteran's predominant service-connected disability is that of the right hand and right upper extremity. This is the Veteran's major or dominant upper extremity and thus will have a very significant impact on his ability to secure or maintain a substantially gainful occupation. As discussed at greater length above, this disability has been described by VA clinicians as having a severe and marked impact in the Veteran's functional use of the right upper extremity. The Veteran has indicated that he can no long work as a result of this disability and the Board finds him to be credible in his assertion and supported by the medical opinion evidence of record. At a VA examination in July 2006 the Veteran indicated that he was last worked on January 30, 2006. He has indicated he has been unable to work since that time. This assertion is credible insofar is a February 2006 VA examination indicates that he had undergone surgery for his right upper extremity disability only days prior, and reports of VA examinations in February 2006, July 2006 and December 2006 indicate his condition to continue to be marked and severe. The July 2006 VA examination report states that the Veteran indicated that his right upper extremity was "getting to the point where he cannot use his right upper extremity at all due to pain, numbness, [and] burning pain in the arm and wrist all the time." In July 2006 the impact was found to prevent activities of sports, shopping and recreation and to be severe on such basic activities of daily living as chores, bathing, and dressing. As recently as January 2011 Veteran has indicated that he continues to be unable to work due to disability of his right upper extremity. In light of the foregoing, the Board finds that the Veteran's service-connected disabilities have precluded him from securing or maintaining a substantially gainful occupation for the period from January 31, 2006 forward. Accordingly, entitlement to a TDIU from January 31, 2006, forward, is granted. ORDER An initial schedular rating of 70 percent rating for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, for the full period from December 24, 2002, is granted. An increased schedular rating, greater than 10 percent, for residuals of blunt force trauma of the right ring and little fingers is denied. Service connection for compensation for post-traumatic damage to the palatal nerve, supplying the sensation of the left side of the hard palate, and indentation of the left oral hard palate, is granted. Service connection for compensation and treatment for post-traumatic partial loss of the maxilla is granted. Service connection for compensation and treatment for loss of teeth secondary to post-traumatic partial loss of the maxilla is granted. A TDIU is granted, effective from January 31, 2006. REMAND As discussed above, in a March 2009 Joint Motion for Remand (Joint Motion) the parties agreed that this matter required remand for consideration of extraschedular consideration for rating of the Veteran's disabilities of the right upper extremity and ring and little fingers of the right hand. The Veteran's disability is unusual or exceptional in that the diagnosis of reflex sympathetic dystrophy presents an unusual disability picture and his disabilities of the right hand and right upper extremity are manifested to an unusual degree by incoordination and pain. Further, as the disabilities are marked and severe, substantially impact activities of daily living, and greatly affect the Veteran's use of his major upper extremity, their impact on employability may be greater than the maximum schedular ratings available for the disabilities. In consideration of the above, all relevant records of treatment must be obtained and the matter must be referred to the Director, Compensation and Pension, for extraschedular consideration. See 38 U.S.C.A. § 5103A(a)-(c) (duty to assist); Bell v. Derwinski, 2 Vet. App. 611 (1992) (relevant VA treatment records constructively in the claims file); 38 C.F.R. § 3.321(b) (extraschedular consideration). The Board cannot consider the matter of extraschedular consideration without substantial potential prejudice in the absence of VA treatment records from January 2005 forward. See Bernard v. Brown, 4 Vet. App. 384 (1993). A TDIU in this decision. However, higher extraschedular ratings are potentially available for dates prior to January 31, 2006, and, as was noted in the parties' March 2009 Joint Motion for Remand, VA's consideration of the TDIU issue: ... does not excuse [the Board's] obligation to assess whether an extraschedular evaluation not based on unemployability is applicable when it is raised by the claimant or by the facts because of the additional protections afforded to total disability ratings not based on individual unemployability. See Acosta v. Principi, 18 Vet. App. 53, 61 (2004) (determining that although claimant was already rated for TDIU, the Board was required to discuss the possibility of a 100-percent schedular rating because of the additional protections against reduction of schedular ratings in 38 C.F.R. § 3.343. See March 2009 Joint Motion for Remand, page 3. The Board is bound by the findings and directives of the March 2009 Joint Motion, which constitute the law of the case. See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated his service-connected disabilities of the right hand and right upper extremity for the period from February 2002 through the present time. (a) After obtaining any appropriate authorizations for release of medical information, the RO/AMC must seek to obtain records from each health care provider the Veteran identifies. (b) The records sought must include all relevant records of VA treatment from January 2005 forward. (c) The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Refer the matter of 1) entitlement to an initial rating in excess of 70 percent for reflex sympathetic dystrophy and ulnar hyperesthesia of the right upper extremity, and 2) entitlement to a rating in excess of 10 percent for disability of the ring and little fingers of the right hand, to the Under Secretary for Benefits or the Director, Compensation and Pension, for extraschedular consideration. 3. Readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs