Citation Nr: 1311698	
Decision Date: 04/09/13    Archive Date: 04/19/13

DOCKET NO.  11-12 982	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased (compensable) initial rating for service-connected loss of teeth numbers 6-11, and 25 due to in-service trauma. 

2.  Entitlement to an increased (compensable) initial rating for service-connected loss of hard palate.

3.  Entitlement to an increased (compensable) initial rating for service-connected loss of maxilla.

4.  Entitlement to an increased initial rating for service-connected posttraumatic stress disorder (PTSD), currently rated 50 percent disabling.

5.  Entitlement to an increased initial rating for service-connected traumatic brain injury (TBI), currently rated 40 percent disabling.

6.  Entitlement to an increased initial rating for service-connected frostbite of the right middle, ring, and index fingers, currently rated 20 percent disabling.

REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

L. J. Vecchiollo


INTRODUCTION

The Veteran served on active duty from April 2004 to February 2009.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for loss of teeth numbers 6-11, and 25 due to in-service trauma, loss of mandible, and loss of hard palate, and assigned separate noncompensable ratings.  The Veteran continues to appeal for higher ratings for these disabilities.  See AB v. Brown, 6 Vet. App. 35 (1993).  That decision granted entitlement to VA outpatient dental treatment for teeth numbers 6-11, and 25 due to in-service trauma.  Although the Veteran filed an notice of disagreement (NOD) regarding outpatient dental treatment for these 7 teeth, he is already in receipt of the benefit, and therefore, the issue is no longer in appellate status.  

That rating decision also granted service connection for posttraumatic stress disorder (PTSD), and assigned a 10 percent rating; traumatic brain injury (TBI), and assigned a 10 percent rating; and frostbite of the right middle, ring, and index fingers, and assigned a noncompensable rating.  In September 2009, the Veteran filed a notice of disagreement with these initial rating assignments.  In an April 2010 decision, the RO granted increased, 50, 40, and 20 percent, ratings, respectively.  See AB v. Brown, supra.

The Veteran testified at a videoconference hearing before the undersigned in March 2013.  A transcript of the proceeding is of record.   

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 Veteran's loss of teeth is manifested by unrestorable lost masticatory surface involving loss of all upper anterior teeth.

2.  The Veteran's loss of hard palate is manifested by unrestorable lost of less than one-half of the hard palate.

3.  The Veteran's loss of maxilla is manifested by unrestorable lost of less than 25 percent of the maxilla.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to 10 percent rating for the Veteran's service-connected loss of all the Veteran's upper anterior teeth have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code 9913 (2012).

2.  The criteria for entitlement to 20 percent rating for the Veteran's service-connected loss of all the Veteran's upper anterior teeth have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code 9912 (2012).

The criteria for entitlement to 20 percent rating for the Veteran's service-connected loss of all the Veteran's upper anterior teeth have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code 9915 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The present case involves "downstream" issues, as the initial claim for service connection was granted in the rating decision on appeal, and the appellant disagrees with the evaluations assigned.  

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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In such a case, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008); see also 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).

Accordingly, the Veteran is not prejudiced by a decision on the appeal, regardless of the timing or content of the notice provided by the RO.

VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant a physical examination, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board.  All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

II.  Analysis

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  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 military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 3.321(a), 4.1 (2012). 

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. 

In these initial rating claims, the Board must discuss whether "staged ratings" are warranted.  Fenderson v. West, 12 Vet. App. 119 (1999).  

It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012). 

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2012).  38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

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 ; 38 C.F.R. § 3.102; 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 . 

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) 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 disabilities.  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 the disability under review.

Upon careful review of the evidence of record, the Board finds that the Veteran is entitled to increased ratings rating for all his three dental disabilities.  

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 evidence of record shows that the Veteran's service-connected dental disability has resulted in the loss of all upper anterior teeth, as noted by the examiner who conducted the February 2011 VA dental examination.  That examiner also stated that the Veteran has not yet been fitted with a functioning prosthesis for these anterior front teeth but that they are restorable.  The Veteran states that he has a cosmetic prosthesis but he cannot chew food with it.  "[L]ay persons are competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  In this case, the Veteran is competent to testify that he has never been fitted with a functioning prosthesis, and the February 2011 VA dental examiner confirms this assertion.  Therefore, the Veteran is entitled to a increased, 10 percent, rating under Diagnostic Code 9913.  

The Veteran's second dental disability is currently rated under Diagnostic Code 9912.  Under Diagnostic Code 9912 a loss of less than one-half of the hard palate that is replaceable by prosthesis is rated 0 percent.  Where the loss is not replaceable by prosthesis, a 20 percent rating is warranted.  38 C.F.R. § 4.150.  The examiner noted that the Veteran has loss of less than half of the hard palate.  The essentially examiner stated that this loss could be replaced by a prosthesis but, due to insufficient time left in service, the condition was never corrected.  The Veteran confirms that he has never been fitted with such prosthesis.  Therefore, the Veteran is entitled to an increased, 20 percent, rating .under Diagnostic Code 9912.

The Veteran's third dental disability is rated under Diagnostic Code 9915.  Under this code, loss of less than 25 percent of the maxilla is rated noncompensably disabling if replaceable by prosthesis or as 20 percent disabling if not replaceable by prosthesis.  38 C.F.R. § 4.150 , Diagnostic Code (2012). 

The VA dental examiner has essentially stated that the Veteran has loss of less than 25 percent of the maxilla which could be replaced by a prosthesis.  However, the examiner and the Veteran note that the Veteran has not yet been fitted with a functioning prosthesis.  Given these findings, the Veteran's disability warrants a 20 percent rating under Diagnostic Code 9915. 

As for additional diagnostic codes, the Board notes that there is no medical evidence of loss of the mandible or limitation of motion of the temporomandibular articulation to the degree required for a higher rating.  See Diagnostic Codes 9900 and 9905.  Additionally, there is no indication of loss of all or part of the ramus as required for a higher rating.  See Diagnostic Code 9906. 

Extraschedular Consideration

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  
The Board finds that the rating criteria contemplate the Veteran's three dental disabilities such as inability to chew food.  The February 2011 VA dental examiner has stated that the Veteran's dental disabilities do not affect usual activities.  The rating criteria are therefore adequate to evaluate the Veteran's three dental disabilities and referral for consideration of extraschedular rating is not warranted.

The Veteran is currently employed and he noted at his hearing that consideration of a claim for total disability rating due to individual unemployability (TDIU) is not necessary.  See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 


ORDER

An increased rating of 10 percent, but not greater, is granted for loss of all upper anterior teeth, subject to the laws and regulations governing the disbursement of monetary benefits. 

An increased rating of 20 percent, but not greater, is granted for loss of hard palate, subject to the laws and regulations governing the disbursement of monetary benefits.

An increased rating of 20 percent, but not greater, is granted for loss of maxilla, subject to the laws and regulations governing the disbursement of monetary benefits.

REMAND

In AB v Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims held that, where there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition, the RO and the Board are required to consider entitlement to all available ratings for that condition.  In this case, a statement of the case has not been provided following the timely filing of a NOD regarding the PTSD, TBI, and frostbite increased initial rating claims, a remand, not a referral is required by the Board.  Manlincon v. West, 12 Vet. App. 238 (1999).  These claims must, accordingly, be remanded for issuance of a statement of the case. 

Accordingly, the case is REMANDED for the following action:

The RO/AMC should issue a statement of the case reflecting its adjudication of the issues of entitlement to initial evaluations in excess of 50 percent for PTSD, 40 percent for TBI, and 20 percent for frostbite of the right middle, ring, and index fingers.  The appellant and his representative should be afforded the appropriate period of time to respond.  Only if the Veteran or his representative submits a timely substantive appeal as to any issue, should such issue be certified to the Board for appellate consideration. 

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs