Citation Nr: 1219982	
Decision Date: 06/07/12    Archive Date: 06/20/12

DOCKET NO.  08-19 950	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for a right eye disability, described as a hole in the right optic nerve.

2. Entitlement to an initial compensable disability rating for residuals of a fracture of the left maxilla.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel



INTRODUCTION

The Veteran served on active duty from July 1967 to June 1970.

This appeal comes before the Board of Veterans' Appeals (Board) from August 2006 and June 2008 rating decisions by the Winston-Salem, North Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). 

The Veteran also appealed the RO's August 2006 denial of service connection for anxiety associated with fracture of the maxilla. Subsequently, however, in the June 2008 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) associated with personal trauma with fracture of the maxilla. In October 2008, the Veteran wrote that the grant of service connection for PTSD satisfied his appeal for service connection for an anxiety disorder. Therefore, that issue is no longer on appeal.

The issue of service connection for a right eye disability is addressed in the REMAND that follows the ORDER section of this decision.


FINDINGS OF FACT

1.  Residuals of a fracture of the left maxilla are manifested by mild facial, gum, and tooth sensitivity and discomfort, without displacement of the maxilla, loss of substance or body of the maxilla, or limitation of motion of the jaw.

2. No tooth loss is attributable to the fracture or treatment for the fracture.



CONCLUSION OF LAW

Residuals of fracture of the left maxilla do not meet the criteria for a compensable disability rating. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Codes 8205, 8305, 8405; § 4.150, Diagnostic Codes 9905, 9913, 9914, 9915, 9916 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')."

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that VA provided the Veteran with all required notice in a letter sent in April 2006 letter, prior to the initial adjudication of the claim.

In addition, service treatment records and all pertinent available post-service records have been obtained.  In addition, the Veteran was provided adequate examinations in response to the claim.  Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.

In sum, the Board is satisfied that VA has complied with its duties to notify and assist the Veteran.  Accordingly, the Board will address the merits of the claim.

Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2008).  

If two ratings are potentially applicable, the higher rating 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.

The RO evaluated the maxilla fracture under 38 C.F.R. § 4.150, Diagnostic Code 9916. Under that code, malunion or nonunion of the maxilla is rated as 30 percent disabling if there is severe displacement, 10 percent if there is moderate displacement, and noncompensable if there is slight displacement. The rating schedule provides for compensable ratings if there is loss of part of the maxilla or loss of teeth due to loss of substance or body of the maxilla. 38 C.F.R. § 4.150, Diagnostic Codes 9913, 9914, and 9915. The rating schedule provides for compensable ratings for limited motion of temporomandibular articulation if the inter-incisal range is 40 millimeters (mm) or less, or if the range of lateral excursion is 4 mm or less. 38 C.F.R. § 4.150, Diagnostic Code 9905.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability, except as noted below.  


The RO granted service connection for fracture of the maxilla, effective from the November 2005 receipt of the claim. The RO assigned a noncompensable disability rating. The Veteran has appealed for a higher rating.

Service treatment records show that the Veteran was hospitalized in September and October 1967, for treatment of fracture of the maxilla. The service dental records show subsequent treatment for caries, with no report of missing teeth, loss of teeth, or extraction of teeth.

In VA medical primary care in March 2005, the Veteran reported having discomfort and cold sensitivity in the left side of his face in the nose and cheek area ever since the 1967 injury. He stated that a left front tooth remained discolored, and that he had gum problems. The treating physician noted discoloration of a left upper front tooth, gingival retraction, and filled dental caries at the gum line. The physician's assessment was skin sensitivity and dental problems, described as probably related to the history of injury that the Veteran reported. In VA treatment in November 2005, the Veteran reported pain and difficulty chewing due to tooth problems. A clinician noted that the Veteran had a partial upper denture, some fractured teeth, and gingival disease.

In a May 2006 statement, the Veteran asserted that, when his teeth were wired after the maxilla fracture, the gums receded to expose roots, and that exposure caused a problem.

In June 2006, the Veteran had a VA dental examination to evaluate the residuals of maxillary jaw fracture. The Veteran reported that the injury occurred in 1967 when he was struck with a rifle butt in the left side of his face, near his nose. It was noted that the maxilla was fractured on the left side, in the area of teeth numbers 9 to 16. The Veteran indicated that he did not lose any teeth at the time of the fracture. He stated the fracture was treated by wiring his jaw closed for five weeks. He related that after the fracture healed his teeth remained sensitive to cold for four years, and then that sensitivity resolved. He reported that his temporomandibular joints (TMJs) on both sides popped when he ate. It was noted that root canal treatment of tooth number 9 was done soon after the fracture repair.

On examination, panoramic X-rays showed that the left maxilla had healed well with no bone loss due to the fracture. There was no excessive bone loss or evidence of bone pathology.  There was normal bone structure at the TMJs. The teeth missing were numbers 1 to 7, 10, 13, 16, 17 to 19, and 32. Tooth number 9 was present and satisfactory. The remaining teeth had only one point of occlusion, at tooth number 12 with numbers 20 and 21. The examining dentist observed evidence of poor oral hygiene, with extensive caries on several teeth. Palpation at the left TMJ produced a feeling of "hot pressure" at the gun on the maxillary arch area of teeth numbers 11 to 16. The movement of the jaw was to 51 mm of maximum opening, with no deviation. Lateral excursion was to 8 mm to the right with a pop at the left TMJ, and to 10 mm to the left with no disturbance. 

The examiner provided the following comments:

Healing of the maxillary jaw fracture is satisfactory. The burning sensation at the gingival area #9-16 is probably due to nerve involvement at the fracture site. TMJ problems are not usually associated with maxillary fractures if the occlusion is maintained during the healing process. The lone remaining occlusal contact is where it is expected to be and can be used to affirm that the occlusion was maintained during healing of the fracture. The loss of teeth appears to be due to poor oral hygiene and chronic dental and gingival problems over many years.

In VA treatment in September 2006, the Veteran reported a four day history of pain in a left upper tooth. He stated that an area of his gums developed redness and drainage. A treating dentist found periodontal disease, particularly affecting tooth number 11. Tooth number 11 was extracted, and antibiotic treatment was provided in response to the abscess. In VA dental treatment in January 2007, a prosthetic tooth number 11 was added to the Veteran's partial upper denture, in response to the 2006 extraction of the natural tooth at that location. It was recommended that the remaining upper teeth be extracted and that the Veteran be fitted with a full upper denture. Later in January 2007, a treating dentist noted generalized moderate to severe periodontal disease. Additional teeth were extracted later in January 2007 and in February 2007.

In a March 2007 statement, the Veteran indicated that a VA dentist told him that the condition of his teeth resulted from misalignment caused by the way his jaw healed when it was wired after the fracture. In a June 2008 statement, the Veteran asserted that his jaw fracture residuals included a problem with a nerve affecting his jaw and teeth.

The Veteran had a new VA dental examination in May 2009. The examiner indicated that no claims file nor records were available for review. The Veteran described the 1967 jaw injury and the treatment for it. He stated that he lost several teeth in the injured quadrant in the injury and treatment process. The Veteran asserted that the jaw fracture and its residuals had led to his other dental problems. 

At the 2009 examination, the Veteran had a complete upper denture. He had no lower molars. The examining dentist stated that there was no missing bone in either arch except that which is normally lost after tooth loss. The inter-incisal range of motion was to 58 mm, and the lateral excursions were to 10 mm bilaterally. The dentist found that the Veteran's only real functional impairment was the loss of all of his lower molars. He indicated that the Veteran's maxillary denture was in good occlusion with his remaining lower teeth and that that he had a full range of motion of the jaw. The dentist reported that new panographic X-rays showed good healing in the area of the fractured maxilla. The dentist stated that the Veteran's maxillary denture was very functional and well adapted. The examiner commented,

This veteran has been a patient here at the VA dental service for some time and has a history of poor oral hygiene. Not having any other information at hand and knowing that his home care has been quite poor, it would have to be this operator's opinion that it has been his lack of good oral hygiene and not his fractured maxillae that is the root of his dental problems.

In April 2010, the Veteran again asserted that the wiring of his jaws caused his gums to recede and the roots of his teeth to be exposed. He stated that this is what caused problems with his teeth. The Veteran contended that the VA dentist who examined him in 2009 was biased. He argued that his denture did not then and still did not align with his remaining teeth.

Analysis

In 2006 and 2009, X-rays showed that the Veteran's maxillary fracture was well healed. The dentist who examined the Veteran in 2006 found that the correctly-positioned occlusion of the remaining teeth showed that occlusion was maintained during the healing of the fracture. The dentist who examined the Veteran in 2009 found that the Veteran's maxillary denture was in good occlusion with his remaining lower teeth. The Veteran argues that his maxillary denture is not aligned with his lower teeth, but the dentists' professional conclusions carry greater weight than the Veteran's lay opinion on the issue of alignment and any displacement of the maxilla. The greater weight of the evidence indicates that the Veteran's maxilla is not displaced. Therefore, the maxilla status post fracture does not warrant a compensable rating under Diagnostic Code 9916.

The 2006 and 2009 X-rays did not show loss of part of the maxilla, except for that bone loss that follows tooth loss. The condition of the Veteran's fractured and healed maxilla therefore does not warrant a compensable rating under Diagnostic Code 9914 or 9915. The Veteran does not have limitation of motion of jaw that is compensable under Diagnostic Code 9905.

In 2006, the Veteran indicated that he did not lose any teeth at the time of the fracture. In 2009, he stated that he lost several teeth at that time. The history is more reliably and credibly shown by the service dental records, which do not show loss of teeth with or following soon after the fracture. Dental records from recent years show multiple missing teeth. The Veteran attributes tooth loss to the fracture and the treatment for it. A primary care physician who saw the Veteran in 2005 indicated that his dental problems were probably related to the jaw injury in service. The dentists who examined the Veteran in 2006 and 2009 each expressed the opinion that the Veteran's tooth loss was not attributable to the fracture. As a lay person without dental training, the Veteran's assertions are not competent evidence regarding medical or dental causation. The physician who expressed the opinion in 2005 was providing primary medical care. He observed the existing dental conditions, but did not endeavor to analyze in detail the etiology of the dental conditions. The dentists who examined the Veteran in 2006 and 2009 are specialists in dentistry, and each was asked to examine the Veteran and provide opinions about the residuals of his maxilla fracture. The Board finds that the dentists' specialized training gives their opinions on dental issues greater weight that the opinion of the primary care physician. The greater weight of the evidence, the Board finds, indicates that the tooth loss noted in recent years is not related to the maxilla fracture.

There is evidence of discomfort and cold sensitivity of the left area of the face and a burning sensation in an area of the gums, and dentists have supported the likelihood that those symptoms are related to the maxilla fracture. The rating schedule provides for evaluating facial nerve paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a, Diagnostic Codes 8205, 8305, and 8405. Under those codes, loss of innervation of facial muscles warrants a compensable, 10 percent, rating if there is disability consistent with moderate incomplete paralysis of the facial nerve. The Veteran's gum and teeth sensitivity and discomfort, based on his descriptions and clinicians' observations, affect small areas intermittently and mildly. The symptoms do not rise to the level of being comparable to moderate incomplete paralysis of the facial nerve. The neurological symptoms residual to the fracture therefore do not warrant a compensable rating.

Overall, the residual manifestations of the Veteran's maxilla fracture do not warrant a compensable evaluation. The manifestations have not warranted a compensable rating during any period since the 2005 effective date of service connection, so there is no basis to assign staged ratings.

The Board has considered whether the claim should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2011). In determining whether a case should be referred for extraschedular consideration, the Board must compare the level of severity and symptomatology of the claimant's disability with the established criteria provided in the rating schedule. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating under the schedule is adequate, and it is not necessary to refer the case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the residual manifestations of the Veteran's maxilla fracture are contemplated by the criteria in the rating schedule. Therefore, referral of the claim for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted.


ORDER

Entitlement to a compensable disability rating for residuals of a fracture of the left maxilla is denied.


REMAND

The Veteran essentially contends that he has right eye disability that was incurred or aggravated in service. There is evidence that he had a right eye injury before service, and that he had impaired visual acuity in his right eye at the time of entry into service. However, no other right eye pathology was found on the service entrance examination.  He had treatment during service for eye complaints. There are records of recent findings regarding his right eye, including a clinician's assessment that he has a pseudo-macular hole in his right eye. 

The Veteran has not had a VA medical examination in response to this claim. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. At 83. In this case, the Board finds that the low threshold has been met and the Veteran should be afforded a VA examination.

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1. The Veteran should be afforded a VA examination by an ophthalmologist to determine the nature and etiology of all acquired right eye disorders present during the pendency of the claim.  The claims folder must be made available to and reviewed by the examiner. Based on the review of the record and the examination results, the examiner should answer the following questions with respect to each acquired right eye disorder present during the pendency of this claim.

Is there a 50 percent or better probability that the disorder was present in service and if so, did the disorder clearly and unmistakably exist prior to the Veteran's entrance onto active duty?  

With respect to any such disorder which the examiner believes existed prior to the veteran's entrance onto active duty, did the disorder clearly and unmistakably undergo no chronic increase in severity during or as a result of service?

With respect to any such disorder which the examiner believes was not present during active service, is there a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service?

The supporting rationale for all opinions expressed must also be provided.  If the examiner is unable to provide the required opinions, he or she should explain why the opinions cannot be provided.

2.  The RO or the AMC should also undertake any other development it determines to be warranted.

3.  Then, the RO or the AMC should readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action.


By this remand the Board intimates no opinion as to any ultimate outcome warranted. 

No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on that matter that the Board has remanded. See 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. 2011).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs