Citation Nr: 1303329 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-06 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial compensable disability rating for bruxism with tooth fracture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from August 1971 to April 1973, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. That decision granted service connection for bruxism with a fractured tooth; the bruxism being found to be secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD). The appeal was remanded to the RO in January 2011 for further development. Such has been completed and this matter is returned to the Board for further consideration. In the January 2011 remand, the Board referred a pending issue of entitlement to VA dental treatment for adjudication by the Agency of Original Jurisdiction (AOJ). To date no further action is shown to have been taken by the AOJ in this matter. In a November 2012 brief, the Veteran's representative again raised the issue of entitlement to VA treatment for his teeth damaged by PTSD and argued for entitlement based on application of 38 C.F.R. § 17.160, and argued for entitlement under alternate theories, to include class I (based on a compensable dental rating) and class III (based on aggravation of service connected PTSD and/or diabetes) under 38 C.F.R. § 17.161. This matter has not yet been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. This matter is separate from the current appeal and has no bearing on the outcome of this matter, which is limited to entitlement to an initial rating for bruxism. However the outcome of the current decision does have a bearing on the referred issue, thus action on the referred matter should include consideration of this decision. FINDINGS OF FACT 1. The Veteran's bruxism with tooth fracture manifests in no functional impairment due to loss of motion, no masticatory function loss, no limitation of right or left lateral excursion to less than 0 to 10 millimeters (mm), and no limitation of inter-incisal range to less than 0 to 50 mm. 2. The Veteran's bruxism with tooth fracture does not manifest in unrestorable lost masticatory surface involving loss of all upper anterior or lower anterior teeth, nor involving the loss of all upper and lower teeth on one side. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for the Veteran's service-connected bruxism with tooth fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Codes 9905, 9913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a March 2006 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal with regard to the claim of entitlement to service connection for bruxism. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in March 2006, which was prior to the January 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Veteran is challenging the evaluation assigned following the initial grant of service connection. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court 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. Thus, because this issue stems from an original service-connection grant, the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (holding that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.) Therefore, no further notice is needed. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, there is no predjudice to the Veteran in the notice failing to advise of the degree of disability and effective date given that this claim is being denied. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, and VA examination reports. The electronic folder has also been reviewed. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded a VA examination in February 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent features of the Veteran's bruxism. The report, prepared by a competent medical expert and informed by direct inspection and interview of the Veteran, provide probative medical evidence concerning the features of disability applicable to the rating criteria in this case. The examination report obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal decided at this time. Analysis-Increased Rating The issue on appeal involves the Veteran's contention that a higher disability rating is warranted for his service-connected bruxism. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2008); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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, in Fenderson, the Court noted an important distinction between an appeal involving a Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The Veteran's bruxism has been rated by analogy to Diagnostic Code 9913. See 38 CFR 2.20. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 9913 provides criteria for evaluating tooth loss due to loss of substance of body of maxilla or mandible without loss of continuity. Under Diagnostic Code 9913, a noncompensable rating is assigned where the loss of masticatory surface can be restored by suitable prosthesis. Where the lost masticatory surface cannot be restored by a suitable prosthesis, a 10 percent rating is warranted for the loss of all upper anterior or lower anterior teeth, or a 10 percent rating is warranted for the loss of all upper and lower teeth on one side; a 20 percent rating is warranted for the loss of all upper and lower posterior or upper and lower anterior teeth; a 30 percent rating is warranted for the loss of all upper teeth or all lower teeth; a maximum 40 percent disability rating is warranted for the loss of all teeth. These ratings apply to bone loss through trauma or disease, such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Code 9913. The Board further notes that the oral conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150 Diagnostic Codes 9900-9916. Diagnostic Code 9900 contemplates chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. Diagnostic Codes 9901 and 9902 address loss of the mandible. Diagnostic Codes 9903 and 9904 concern nonunion and malunion of the mandible, respectively. Diagnostic Code 9905 addresses temporomandibular articulation and limited jaw motion. Diagnostic Codes 9906 and 9907 contemplate loss of the ramus, and Diagnostic Codes 9908 and 9909 address loss of the condyloid and coronoid process, respectively. Diagnostic Codes 9910 and 9910 concern loss of the hard palate. Loss of the maxilla is addressed under Diagnostic Codes 9914 and 9915. Finally, Diagnostic Code 9916 concerns malunion or nonunion of the maxilla. By way of history, service treatment records are noted to include an August 1971 dental record showing missing teeth numbered 1, 18, 32, and 17. Teeth numbered 30, 19 and 14 had caries. In July 1996 the Veteran underwent a VA dental examination in conjunction with a claim for service connection for bruxism that was subsequently denied in March 1997. This examination revealed good dentition with some caries present in a few teeth, and generalized periodontal disease present. Bilateral mandibular tori and one medium large palatal torus was present. He had evidence of endodontic treatment on tooth number 30 with a gold crown and caries present under the crown. All third molars were missing, as was the maxillary of the first molar. There was no pain or patholology on X-ray. Dental records from UM Dental School documented long term dental treatment from 2001 to 2005. These records included a January 2001 record showing fabrication of a night guard to prevent bruxing while sleeping. Another note from January 2001 disclosed X-ray findings of missing teeth 1, 14, 16, 17, 18 and 32 with no impacted, unerupted, retained or supraerupted teeth. TMJ was not visible. Bone revealed possible mandibular tori and mandibular and maxialla exostosis. Soft tissue was normal. Periodontal condition revealed mild horizontal bone loss in anterior calculus from teeth numbered 20 through 24 and tooth number 10. The rest of the dental notes from 2001 document treatment of carious teeth including tooth number 28 which was filled and back filled in January and February 2001. Tooth number 10 was filled in February 2001. Tooth number 30 was restored between March 2001 and May 2001 with crown. Tooth number 31 was restored in April 2001. The dental records do reflect that a fracture of tooth number 12 was repaired in December 2001. In January 2012 he was treated for a fracture of tooth number 10 at the gumline, with the tooth repaired and casted. No opinion as to the causes of the fractures was given in these records. However in January 2001 when undergoing fixed restoration of caries and missing teeth including replacing a gold crown on tooth number 30, and planned placement of fixed partial dentures on teeth numbers 13 to 15, the Veteran was advised that due to severe bruxism, the fixed bridge 13-X-15 was not advised. Thus treatment was limited to replacing the crown on tooth number 30 due to excessive wear and occlusion. Later in March 2002 he underwent preparations for replacement of the 3 unit bridge from teeth 13 to 15 to replace missing tooth 14. He additionally was prepped for a full gold crown at tooth 28. His oral hygiene was described as poor, with plaque and bleeding in March 2002 and a carious front tooth number 9 was filled. The status of the Veteran's teeth reported in a December 2004 dental record revealed that at this time teeth numbers 1, 14, 16, 17, 18 and 32 were missing. There were no impacted teeth. Inadequate restorations or open contacts were shown in teeth numbered 10, 12, 15, 28 and 29. Crestal bone topography revealed general mild variegated bone loss. Exostosis was present in both arches. The bridge from tooth numbers 13-15 replaced tooth numbered 14. A "RLT" tooth post was at tooth number 10, RLT full gold crown was at tooth 30 and RLT crown was at tooth 28. Records from an unclear month in 2005 (later said to be January), show that on the 25th of the month in 2005, the Veteran was concerned with bruxism and it being related to medications prescribed for depression. Review of the medication listed disclosed that SSRI's are known to produce bruxism in patients administered them. The Veteran was recommended to be monitored regularly since he was still on an SSRI (Paxil) and mouth guards needed to be checked periodically for excessive wear. Another note from a few days later revealed an "M & I" lesion on tooth number 8, with need for restoration. The report of a February 2011 VA examination for dental disorders noted the Veteran's history of bruxism secondary to service connected PTSD, with a noncompensable rating for the dental disorder. He treated at a dental school at a nearby university (UM Dental School). Review of records disclosed a diagnosis of severe bruxism since at least December 2000, and a fractured tooth as a result. The fractured tooth was not identified. Records from January 2005 disclosed that he was taking medications for psychiatric and nervous conditions and that this was the cause of bruxism. Clinic notes from 2005 indicated that medication literature did not show this medication to cause bruxism. Examination, both clinical and radiological showed very poor oral hygiene with moderate to severe caries, especially cervical areas of several teeth. Numerous defective restorations were present; missing teeth included 1, 14, 17, 18 and 32. Teeth that had root canal procedures were teeth 9, 10, 28, and 30. There were crowns on teeth number 9, 10, 19, 28, 30 and 31. A bridge was present from teeth 11 to 15. No radiologic pathology was found, with condyles or connecting fossa. There was generalized gingival inflammation. Indications of possible bruxism were shown in teeth numbered 4, 5, 6, 7 and 8. The examiner indicated it was not applicable (NA) as to whether there was tooth loss due to loss of substance of the body of maxilla or mandible, other than due to periodontal disease. The missing teeth were noted to be 1, 14, 17, 18 and 32. Replacement of the 3rd molars was not indicated. Tooth 18 could be replaced by prosthesis. The range of motion at the temporomandibular articulation measured by interincisal and lateral excursions were all normal. As for whether there was objective evidence of pain on motion, additional loss on repetitive motion, or loss of motion due to pain and Deluca factors, the examiner wrote "NA." The examiner also answered "NA" to whether any of the following was present: Loss of bone of maxilla or mandible; malunion or nonunion of maxilla or mandible; loss of bone of hard palate; evidence of osteoradionecrosis or osteomyelitis of the maxilla, mandible or both; and speech difficulty. Results of all diagnostic and clinical tests including clinical and radiology examination revealed very poor defective restorations, moderate to severe cervical caries, and extensive crown and bridge treatment with root canal therapy. Of note were severely worn teeth 4,5, 6, 7 and 8 due to possible bruxism. Under Diagnostic Code (DC) 9905 a 10 percent rating is assigned when the inter-incisal range of motion is limited to between 31 and 40 mm; while a 20 percent rating is assigned when it is between 21 and 30 mm. A 10 percent rating may also be assigned when the range of lateral excursion is limited to between 0 and 4 mm. Based on the above, The Board finds that the criteria for assignment of a compensable rating for the Veteran's bruxism are not met in this case. The evidence clearly and consistently demonstrates that the Veteran has not unrestorably lost the masticatory surface for all upper or lower anterior teeth nor for all upper or lower teeth on one side; no higher rating is warranted under Diagnostic Code 9913. While the evidence does show some wear and even fracturing of teeth (tooth 10 and/or 12) attributable to his bruxism, the evidence detailed above also shows that the lost or damaged teeth are restorable by suitable prostheses, such as bridges and crowns, which is consistent with the noncompensable rating assigned under this Diagnostic Code. Consideration has been given for other potentially applicable criteria. Under Diagnostic Code 9905, a 10 percent rating is assigned for range of lateral excursion of 0 to 4 millimeters (mm) or for inter-incisal range of 31 to 40 mm. A 20 percent rating is assigned for inter-incisal range of 21 to 30 mm. A 30 percent rating is assigned for inter-incisal range of 11 to 20 mm. A 40 percent rating is assigned for inter-incisal range of 0 to 10 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. See Note to Diagnostic Code 9905. None of the evidence has reflected either loss of lateral excursion or inter incisal range of motion either in the dental records or VA examination reports. The VA dental examination of February 2011 reported the Veteran's range of motion at the temporomandibular articulation measured by interincisal and lateral excursions were all normal, with no evidence of pain on motion or functional loss even on repetitive motions. Therefore, even accounting for functional loss, the Board finds that the inter-incisal range of motion has not been limited to 40 mm or less and lateral excursion has not been limited to 4 mm or less in either direction. Therefore, no higher rating is warranted under the provisions of Diagnostic Code 9905. The evidence of record does not show osteoradionecrosis or osteomyelitis. Therefore evaluation under Diagnostic Code 9900 is not appropriate. The record similarly fails to show loss of the maxilla, mandible, or hard palate, thereby rendering evaluation under Diagnostic Codes 9901-9902, 9906-9912, or 9914-9916 inappropriate. Likewise, there is no evidence of malunion or nonunion of the maxilla or mandible such as to enable a higher rating under Diagnostic Codes 9903 or 9904. While the record does show the loss of some teeth, this tooth loss is not associated with loss of substance body of maxilla or mandible, as no such substance body loss has been shown. In light of the above, the Board finds that a preponderance of the evidence is against the claim of entitlement to an increased initial disability rating for bruxism in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER An initial compensable rating for bruxism with tooth fracture is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs