Citation Nr: 1306106 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 04-13 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to an initial compensable disability rating for a dental disability manifested by moderate to severe bone loss, gross decay, decreased ability to masticate and loss of teeth numbers 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, 15, 17, 18, 23, 25, 26, 29, 30, and 31. REPRESENTATION Appellant represented by: Vermont Veterans Affairs Section, Military Department ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to June 1985. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in part, continued a noncompensable (0%) disability rating for the Veteran's pharynx cancer. In an April 2007 decision, the Board rendered a decision on the Veteran's claim. The Veteran appealed the Board's April 2007 decision to the United States Court of Appeals for Veterans Claims (Court) and in an Order dated in May 2008, the Court vacated only that part of the Board's decision regarding an increased disability rating for the Veteran's pharynx cancer. The Court remanded the Board's decision for proceedings consistent with a Joint Motion for Remand (JMR) filed in this case. The JMR directed the Board to consider claims for secondary service connection as residuals of the Veteran's service-connected pharynx cancer warranting separately assigned disability ratings. In July 2008 the Board remanded the case for further development in compliance with the JMR. A May 2010 rating decision granted service connection for a dental disability manifested by moderate to severe bone loss, gross decay, decreased ability to masticate and loss of teeth numbers 2, 3, 13, 14, 15, 18, 29, 30, and 31, and assigned a noncompensable disability rating effective May 2002. Service connection was also granted for dysphagia with fibrosis of the tongue and psychiatric disorder. The Veteran's current combined schedular disability rating is 80 percent and he has been assigned a total disability rating based on individual unemployability (TDIU). He has also been granted entitlement to special monthly compensation (SMC) on the basis that the housebound criteria are met. During the pendency of the appeal, the case was transferred to the RO in White River Junction, Vermont. In May 2012 the Board remanded the case for further development. FINDINGS OF FACT 1. From May 10, 2002 to February 20, 2011, the Veteran had lost teeth numbers 1, 13, 14, 15, 16, 30, and 32; there is no evidence that it resulted in the loss of all upper anterior or lower anterior teeth, or the loss of all upper and lower teeth on one side. 2. Although the Veteran has lost all the upper teeth since February 21, 2011; there is no evidence that the lost masticatory surface cannot be restored by suitable prosthesis. CONCLUSION OF LAW The criteria for an initial compensable disability rating for dental disability manifest by moderate to severe bone loss, gross decay and decreased ability to masticate with loss of teeth numbers 1, 13, 14, 15, 16, 30, and 32, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.150, Diagnostic Code 9913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's VA medical treatment records and private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA examinations were conducted in August 2002, April 2003, November 2009, and May 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). These examinations in aggregate with medical treatment records are adequate as they are predicated on examinations of the Veteran and fully addressed the rating criteria relevant to evaluating the Veteran's service-connected dental disability. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims files. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 at 486 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. 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. 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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected residuals of a dental injury are currently rated as noncompensable under 38 C.F.R. § 4.150 Diagnostic Code 9913 for loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity. Under Diagnostic Code 9913, a maximum 40 percent disability rating is warranted where the lost masticatory surface cannot be restored by a "suitable prosthesis," for the loss of all teeth. For the loss of all upper teeth or all lower teeth, a 30 percent rating is warranted. For the loss of all upper and lower posterior or upper and lower anterior teeth, a 20 percent rating is warranted. For the loss of all upper anterior or lower anterior teeth, or for the loss of all upper and lower teeth on one side, a 10 percent rating is warranted. Where the loss of masticatory surface can be restored by suitable prosthesis, a noncompensable (0 percent) rating is warranted. 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, because such loss is not considered disabling. 38 C.F.R. § 4.150 (2012). Dental and oral disabilities can also be rated under Diagnostic Codes 9900 to 9912, 9914, 9915, and 9916. 38 C.F.R. § 4.150. However, at no time during the pendency of his appeal has there been evidence of chronic osteomyelitis or osteoradionecrosis, any loss of the mandible, maxilla, ramus condyloid process, or hard palate, or any evidence of limitation of temporomandibular articulation. Therefore, Diagnostic Codes 9900 to 9912, 9914, 9915 or 9916, are not for application. Id. An August 2002 VA examination report shows the Veteran relevantly complained of dry mouth and tooth decay. Physical examination revealed multiple cracked and chipped teeth, as well as several missing teeth consistent with chronic xerosis secondary to radiation of the head and neck. An April 2003 VA examination report shows the Veteran had a decreased ability to masticate due to pain. At the time, teeth numbers 1, 14-16, 17, 30, and 32 were missing. There was decay in teeth numbers 2-5, 7, 8, 13, 18, 19, 24, 25, 29, and 31. The Veteran had normal inter-incisal range of motion and moderate bone loss. The examiner opined that prosthesis was possible. The examiner opined the Veteran had bone loss that was consistent with a lack of oral hygiene and that he had gross decay that was secondary to his dry mouth from radiation treatments for cancer. The examiner noted that the Veteran stated he had not seen a dentist since his discharge from service and that this lack of dental follow-up was contributory to decay. VA treatment records during this period show that the Veteran had teeth numbers 1, 13, 14, 15, 16, 17, 30, and 32 missing in June 2008, with retained roots in teeth numbers 2, 3, 18, 19, 24, 29, and 31. At that time it was recommended that all his remaining teeth either be extracted or treated. The examiner recommended that he undergo hyperbaric oxygen therapy prior to mandibular dental extractions to maximize his chance of avoiding osteoradionecrosis (ORN), or pathologic fracture and complex resection and reconstruction surgery. A May 2009 treatment record shows the Veteran had significant mandibular and maxillary dental decay. At a November 2009 VA examination, the Veteran complained of rampant dental caries of several years' duration that he felt was worsening. Physical examination revealed "mutilated dentition. The examiner observed either missing or carious molars to the gingival. Restoration of the remaining teeth would be impossible in many cases or difficult. There was moderate to severe bone loss and the salivary flow was decreased and the mouth dry. The Veteran was not able to chew well as he had no functional posterior teeth and experienced pain throughout his mouth while chewing. The examiner opined that the dryness, gross decay, bone loss, and decreased ability to masticate were all more likely than not a result of the radiation treatment the Veteran received in service. In January 2010 VA approved a fee basis dental evaluation and plan. A May 2010 VA emergency department treatment record shows the Veteran was seen with complaints of severe tooth and jaw pain that was likely a recurrent dental infection. A May 2010 memorandum indicates that teeth numbers 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 17, 18, 23, 25, 26, 29 and 31 were to be extracted. A July 8, 2010 private dental treatment plan shows that teeth numbers 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 17, 18, 23, 25, 26, 29 and 31 were to be extracted, while root canals were to be performed on teeth numbers 4 and 6, and crown build-ups were to done on teeth numbers 20, 21, 22, 27 and 28. A February 23, 2011, VA treatment record notes that the Veteran had all his upper teeth extracted that Monday (February 21, 2011). An April 2011 VA treatment record shows that the Veteran's upper teeth had been completely extracted. The May 2012 VA examiner determined that the Veteran had not lost his mandible, maxilla or any parts of them. He further noted that there was no evidence of malunion or nonunion of the mandible or maxilla, and no evidence that the Veteran had lost any part of the hard plate. The Veteran had a loss of teeth due to xerostomia caused by radiation for his service-connected pharyngeal cancer. The Veteran had lost all of his upper teeth. All of his molars were missing in the lower teeth. Although the examiner indicated that the Veteran's masticatory surfaces could be restored by suitable prosthesis, he also noted that he could not currently wear his dentures. The examiner provided no reason for his inability to wear his dentures, but noted that the Veteran felt that people would be unlikely to hire him when they saw him without dentures. A July 2012 VA treatment record notes that the Veteran had undergone hyperbaric treatment for dental care and had implants placed in the upper gums in order to hold dentures in place. At the time he was still awaiting his final dentures and his upper teeth were described as edentulous. Prior to February 21, 2011, while the evidence shows that the Veteran had moderate bone loss, severe dental decay and multiple missing teeth, there is no evidence that his lost masticatory surfaces could not be restored by a suitable prosthesis, or that he was missing all of the upper or lower anterior teeth, or that he was missing all upper and lower teeth on one side. All the available evidence clearly indicates that the Veteran had several teeth extracted on February 21, 2011, and that this resulted in his losing all of his upper teeth. However, the May 2012 VA examiner determined that the Veteran had no mandible or maxilla bone loss and that his masticatory surfaces could be restored by suitable prosthesis. Indeed, the July 2012 treatment record supports the examiner's conclusion, as it indicates he had recently had 2 implants placed in his upper gums to secure dentures he was still awaiting. Thus, a compensable disability rating is not warranted at any time during the pendency of the Veteran's appeal. The evidence does not show such an exceptional disability picture that the available schedular evaluations for service-connected dental disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. There are higher ratings available under the diagnostic codes for dental disabilities during the above-mentioned time periods, but the Veteran's disability was not productive of such manifestations during the evaluation period. As such, it cannot be said that the available schedular evaluations are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008) A claim for a total evaluation due to individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). A September 2011 rating decision granted the Veteran's claim for TDIU. The record does not indicate the Veteran or his representative has expressed any disagreement with any aspect of this determination. Thus, the assignment of a TDIU need not be addressed at this time. ORDER Entitlement to an initial compensable disability rating for a dental disability manifested by moderate to severe bone loss, gross decay, decreased ability to masticate and loss of teeth numbers 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, 15, 17, 18, 23, 25, 26, 29, 30, and 31, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs