Citation Nr: 1306444 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 07-36 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a compensable disability evaluation for the postoperative residuals of an oral fistula to the maxillary sinus secondary to tooth extraction. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Esq. ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1954 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In December 2007, the Veteran requested that he be scheduled for a hearing at the Board. The Board proceeded to adjudicate the Veteran's claim in January 2010. Subsequently, in December 2010, the United States Court of Appeal for Veterans Claims (Court) granted a joint motion to remand agreed upon by the parties for failure to schedule the Veteran for his requested hearing. However, in December 2011, VA received notice from the Veteran's representative indicating that the Veteran desired to withdraw his hearing request. The Veteran's claim was subsequently remanded by the Board in January 2012 for further evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The post-operative residuals of an oral fistula to the maxillary sinus secondary to extraction of tooth number 13 are manifested by the loss of teeth with the masticatory surface restored by a suitable prosthesis. 2. The post-operative residuals of an oral fistula to the maxillary sinus are not manifested by chronic osteomyelitis or osteoradionecrosis, complete or partial loss of the mandible, malunion or nonunion of the mandible, loss of all or part of the ramus, loss of the condyloid process, loss of the coronoid process, loss of any or all of the hard palate, loss of any of the maxilla or malunion or nonunion of the maxilla. 3. The post-operative residuals of an oral fistula to the maxillary sinus are not manifested by disfigurement and/or impairment of function of mastication. 4. There is no scarring associated with the post-operative residuals of an oral fistula to the maxillary sinus. 5. Since March 21, 2012, there is evidence of limited temporomandibular articulation to 40 millimeters; there is no evidence of limited temporomandibular articulation prior to March 21, 2012. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a 10 percent disability evaluation for the post-operative residuals of an oral fistula to the maxillary sinus due to limited temporomandibular articulation, as of March 21, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.150, Diagnostic Code 9905 (2012). 2. The criteria for establishing entitlement to a compensable disability evaluation for the post-operative residuals of an oral fistula to the maxillary sinus, prior to March 21, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.114, 4.150, Diagnostic Codes 7200, 9900-9916 (2012), 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the present case, notice meeting the required criteria was provided to the Veteran in letters dated August 2004, April 2006 and March 2008. While all of the requisite notice was not provided to the Veteran prior to the initial adjudication of his claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and 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 all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in February 2005, May 2006 and March 2012, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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). Additionally, the Board finds there has been substantial compliance with its January 2012 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Veteran was scheduled for his requested hearing. However, this request was subsequently withdrawn following the Joint Motion for Remand. The RO later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings 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 ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts and Analysis The Veteran was originally granted service connection for the postoperative residuals of an oral fistula to the maxillary sinus secondary to tooth extraction in a September 1957 rating decision. A noncompensable (0 percent) disability evaluation was assigned, effective as of October 17, 1956. According to a November 2004 rating decision, VA received a claim for a compensable disability evaluation for this condition in April 2004. A timely notice of disagreement was received in November 2004. This denial was continued in a June 2006 rating decision and a September 2007 statement of the case, and the Veteran appealed the assigned rating to the Board in November 2007. The Veteran was afforded a full VA dental examination in February 2005. It was noted that during service, the extraction of tooth number 13 was performed. An oroantral fistula , secondary to the extraction, was treated surgically on two occasions, causing the Veteran to lose all of his maxillary teeth and develop a chronic maxillary sinus infection. The Veteran reported breathing problems with persistent cough, left tempomandibular joint (TMJ) pain, persistent pain in the left maxilla, loss of taste and difficulty chewing. Examination revealed all maxillary teeth to be absent and all mandible teeth to be absent aside from teeth numbers 17, 20, 22, 27 and 29. A moderate gingival inflammation of the remaining teeth with extensive bone loss was observed. The tongue and oral soft tissue appeared normal except for the sensitivity and tenderness and the extensive alveolar bone loss on the left maxillary alveolar ridge area. The Veteran was noted to have average limitation of masticatory function due to wearing a complete dental prosthesis for fifty years. The examiner concluded that the Veteran was suffering from the complete loss of maxillary teeth, a chronic maxillary sinusitis with persistent posterior nasal drip that caused the patient to cough and have shortness of breath, and neuralgia of the maxillary and ophthalmic branches of the left trigeminal nerve. The examiner felt that all of these conditions were caused by the traumatic extraction of tooth 13. The Veteran underwent an additional VA examination for this condition in May 2006. The Veteran's main complaints at this time were difficulty in chewing and breathing problems during sleep. Examination revealed no loss of masticatory function. The Veteran was noted to be missing teeth 1 through 16, 18 through 21, 23 through 26, 28 and 30 through 32. All teeth were replaced by a removable prosthesis. It was not possible to evaluate the extent of any bone loss because the Veteran refused to take any X-rays. The examiner concluded that the symptoms were normal of an edentulous patient with a denture history of 10 years or more and there was no evidence of aggravation or increase of this condition. The record does not reflect that the Veteran has regularly sought treatment for this condition. However, a February 2010 VA treatment record indicates that the Veteran reported a clicking of the temporomandibular joints (TMJ) upon mastication. Examination confirmed a clicking and it was noted that the Veteran had a complete upper and a partial lower denture for approximately 15 years. An October 2010 VA outpatient treatment record notes that radiographic evidence revealed no abnormalities at the temporomandibular joints. The Veteran was most recently afforded a VA examination for this condition in March 2012. It was noted that the Veteran previously had an oro-antral fistula as a result of extraction of tooth number 13. This was correct by maxillofacial surgery in 1956. The Veteran had not lost any teeth due to trauma or disease and the masticatory surfaces could be restored by a suitable prosthesis. There were no disfiguring scars to the mouth or lips and no other scars related to the claimed condition and the Veteran did not have a mouth injury that resulted in impairment of mastication. X-ray imaging revealed complete edentulism of the maxillary, partial edentulism of the mandibular and pneumatization of the maxillary sinuses with cloudiness. The examiner concluded that the Veteran's condition did not impact his ability to work. Also, it was noted that oral and radiographic evaluation did not show any evidence of the Veteran's claimed residual oro-antral fistula in area 13. The above evidence demonstrates that a 10 percent disability evaluation is warranted as of March 21, 2012. However, the preponderance of the evidence demonstrates that a compensable disability evaluation is not warranted prior to March 21, 2012. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2012). Since there are no specific rating criteria for oral fistula residuals, the Board has considered all the rating codes that might apply. According to Diagnostic Code 9905, a 10 percent disability evaluation is warranted when temporomandibular articulation has limited motion between 31 to 40 millimeters (mm). 38 C.F.R. § 4.150. According to the March 2012 VA examination report, the Veteran's condition was significant in that the maximum opening was 40 mm. The record contains no prior evidence of temporomandibular articulation limited to 40 mm or less. In fact, an October 2010 VA treatment record specifically notes that there was no evidence of abnormalities at the TMJs. The May 2006 VA examiner also concluded that there was no loss of masticatory functioning at this time. As such, a 10 percent disability evaluation is warranted as of March 21, 2012 - the first evidence of limited temporomandibular articulation. There is also no evidence of record to suggest that a compensable disability evaluation is warranted prior to March 21, 2012 under any relevant diagnostic code. The diagnostic criteria pertaining to dental and oral conditions are found at 38 C.F.R. § 4.150. Diagnostic Code 9900 pertains to chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. However, there is no evidence of chronic osteomyelitis or osteoradionecrosis, or any analogous bone disease ratable by analogy under Diagnostic Code 9900. According to the March 2012 VA examination report, the Veteran had never been diagnosed with osteomyelitis or osteoradionecrosis of the mandible. Diagnostic Codes 9901 through 9904 pertain to impairment of the mandible. There is no evidence of involvement of the mandible (jaw) ratable under Diagnostic Codes 9901, 9902, 9903 or 9904. The March 2012 VA examiner explained that there was no anatomical loss or bony injury of the mandible and that there was no malunion or nonunion of the mandible. There is also no involvement of the ramus ratable under Diagnostic Codes 9906 or 9907, as confirmed by the March 2012 VA examiner. There is also no evidence of involvement of the condyloid process ratable under Diagnostic Code 9908 or the coronoid process ratable under Diagnostic Code 9909. There has been no loss of the hard palate ratable under Diagnostic Code 9911 or 9912 either. While there has been a loss of teeth, VA examinations of record have consistently shown that the masticatory surface has been restored by a suitable prosthesis. 38 C.F.R. § 4.150, Diagnostic Code 9913, establishes that a noncompensable (0 percent) evaluation is to be assigned where the loss of masticatory surface can be restored by a suitable prosthesis. All of the examinations of record have also revealed no impairment of the maxilla. Diagnostic Codes 9914 and 9915 provide ratings for varying degrees of maxilla loss. 38 C.F.R. § 4.150. The February 2005 VA examination report did note extensive bone loss. However, the March 2012 VA examiner clarified that there was in fact no loss of any part of the maxilla. Diagnostic Code 9916 also provides disability evaluations for malunion or nonunion of the maxilla. Id. However, the March 2012 VA examiner also confirmed that there was no malunion or nonunion of the maxilla. As such, a compensable disability evaluation is not warranted for loss or impairment of the maxilla at any time during the pendency of this claim. This disability is also rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code 7200. This code does not provide ratings in and of itself, but instead, provides that injuries of the mouth will be rated for disfigurement and impairment of function of mastification. In this case, there is no claim or evidence that the fistula resulted in any disfigurement. The March 2012 VA examiner specifically concluded that there were no disfiguring scars to the mouth or lips. According to the May 2006 VA examination report, there was no loss of masticatory function at this time. The March 2012 examiner also concluded that the Veteran did not have any mouth injuries that resulted in impairment of mastication as well. As such, a compensable disability evaluation under Diagnostic Code 7200 is not warranted at any time during the pendency of this claim. Finally, the Board has considered whether a compensable disability rating based on scarring may be warranted. Amendments were made to the criteria for rating the skin, effective as of October 23, 2008. However, the amended regulations are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2009)). However, since the Veteran's claim was received prior to 2008, his claim would be rated under the criteria as it existed prior to October 23, 2008. However, there is no evidence that the Veteran has a residual scar that is actually painful or which limits any function of the mouth. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-05. The March 2012 VA examiner also specifically concluded that there were no scars related to this condition. As such, a compensable disability evaluation based on scarring is not warranted at any time during the pendency of this claim. The Board recognizes that the Veteran believes he is entitled to a higher disability evaluation prior to March 21, 2012. In his July 2007 notice of disagreement, the Veteran asserted that he had limited jaw action and loss of masticatory function. However, while the Board has considered these assertions, they are not supported by subsequent medical evidence of record. An October 2010 VA treatment record notes that there was no impairment of the TMJs and the March 2012 VA examiner concluded that the Veteran did not have any injury of the mouth that resulted in impairment of mastication. As such, the Veteran's reported symptomatology fails to reflect that he actually met the diagnostic criteria for a higher disability evaluation at any time during the pendency of his claim. The Board has also considered a statement from the Veteran's dentist received in May 2012. According to the statement, the Veteran felt discomfort in the maxilla with sensitivity in the alveolar ridge area. The dentist felt that this may be due to the thinness of the epithelium which was in contact with the surface of the prosthesis causing discomfort. While the Board is sympathetic to the Veteran's situation, maxilla sensitivity does not support a higher disability evaluation under the applicable rating criteria. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms associated with his service-connected postoperative residuals of an oral fistula to the maxillary sinus secondary to tooth extraction include subjective tenderness with limited motion of temporomandibular articulation. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. §§ 4.114, Diagnostic Code 7200, 4.150, Diagnostic Codes 9900-16. These codes allow for a higher disability evaluation upon a showing of worsening symptomatology. The Board recognizes that the Veteran's reported tenderness has not specifically been reflected by the rating criteria. However, there is no evidence that this tenderness has been of sufficient severity to warrant a higher disability evaluation. The VA examiners of record have concluded that the Veteran suffers no loss of masticatory function or any occupational impairment due to his service-connected disability. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. The Board notes that a statement was received from the Veteran in March 2012 expressing his disagreement with his last medical evaluation. The Veteran provided no reasons or bases for his disagreement with this examination. The Veteran's mere assertion that he disagreed with a prior examination, however, does not demonstrate that a new examination is required. Since the Veteran failed to identify any actual deficiencies from his examination, a remand is not necessary and appellate review is proper. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The evidence pertaining to the increased rating claim in this case shows that the fistula residuals do not, by themselves or together with other service-connected disabilities, render the Veteran unemployable. The March 2012 VA examiner specifically concluded that there was no occupational impairment stemming from the disability currently on appeal. As such, referral for consideration of TDIU is not warranted. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a 10 percent disability evaluation for the postoperative residuals of an oral fistula to the maxillary sinus secondary to tooth extraction is warranted as of March 21, 2012. See 38 U.S.C. § 5107(b). However, the preponderance of the evidence of record is against the claim of entitlement to a compensable disability evaluation prior to March 21, 2012, and as such, the provisions regarding reasonable doubt are not applicable. In this limited extent, the claim is granted. Staged ratings may be assigned where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). (CONTINUED ON NEXT PAGE) ORDER A 10 percent disability evaluation for the postoperative residuals of an oral fistula to the maxillary sinus secondary to tooth extraction, as of March 21, 2012, is granted. A compensable disability evaluation for the postoperative residuals of an oral fistula to the maxillary sinus secondary to tooth extraction, prior to March 21, 2012, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs