Citation Nr: 1314191 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 09-43 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 0 percent for fracture, bilateral at neck of condyles of mandible. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from December 1957 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). FINDING OF FACT The medical evidence of record shows that the Veteran's dental disability is manifested by missing teeth which can be restored by a suitable prosthesis. CONCLUSION OF LAW The criteria for a rating in excess of 0 percent for a mandible fracture have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in February 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The 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 (West 2002); 38 C.F.R. § 4.1 (2012). The Board may only consider the specific factors as are enumerated in the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 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 (2012). 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 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for fracture, bilateral at neck of condyles of mandible, was granted by a June 1997 rating decision and a 0 percent rating was assigned, effective October 24, 1996, under 38 C.F.R. § 4.150, Diagnostic Code 9999-9913. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that an unlisted dental and oral condition, under Diagnostic Code 9999, was the service-connected disability, and loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity, under Diagnostic Code 9913, was a residual condition. Initially, the Board notes that dental disabilities are treated differently than other medical disabilities in the VA benefits system. 38 C.F.R. § 3.381 (2012). As provided by VA regulations, some dental disabilities warrant service connection for compensation purposes, while other warrant service connection only for the purposes of treatment. 38 C.F.R. §§ 3.381(a), 17.161 (2012). In this case, service connection was separately granted for both compensation and treatment purposes by a June 1997 rating decision, with compensation granted for fracture, bilateral at neck of condyles of mandible, and treatment granted for tooth numbers 7, 8, 9, and 10. The claim on appeal arises from a March 2009 rating decision which denied an increased rating for fracture, bilateral at neck of condyles of mandible. The Veteran's March 2009 notice of disagreement specifically stated that he was seeking a 10 percent rating for his dental condition. Accordingly, the Board finds that the claim on appeal is limited to the rating assigned for his service-connected disability, and the Board does not have jurisdiction to address any dental claim on the basis of treatment. 38 C.F.R. § 20.101, 20.200 (2012). A May 1995 private dental report stated that the Veteran was missing tooth numbers 1, 4, 7, 8, 9, 10, 16, 17, and 32. The dentist listed three different dental treatment plans. The best plan was listed as the removal of tooth numbers 3 through 13 with the installation of a 10 unit fixed bridge. A January 2008 VA dentistry report stated that the Veteran had fair to poor oral hygiene with moderate calculus and plaque, moderate to heavy bleeding, and gingiva which were puffy, red, and had localized 4 to 5 millimeter pocketing. In a January 2009 statement, the Veteran report that that the partial bridge installed for treatment of his service-connected lost teeth was affecting the health of his other teeth. In a March 2009 VA dental and oral examination report, the Veteran stated that he had received a 4 unit dental bridge from a private dentist in 1961 for treatment of his service-connected lost teeth. He reported that the bridge was replaced in 1994 due to recurrent decay, with the installation of a 10 unit bridge by a private dentist. The Veteran denied a history of hospitalization, surgery, neoplasm, difficulty chewing, swelling, pain, difficulty opening his mouth, difficulty talking, and drainage. On physical examination, there was no loss of the bone, malunion, or nonunion of either the maxilla or the mandible. There was no limitation of temporomandibular articulation, nor was there loss of bone of the hard palate. There also was no evidence of osteoradionecrosis, osteomyelitis, or speech difficulty. There was no tooth loss due to loss of substance of the body of the maxilla or mandible, other than loss due to periodontal disease. The Veteran's muscles were within normal limits and no abnormalities of the temporomandibular joints were found. On radiographic examination, no significant findings were noted. No temporomandibular joint diagnosis was given, and the oral examination was found to be within normal limits. In an October 2009 appeal to the Board, the Veteran stated that he had been incorrectly rated at 0 percent as he had a total of 10 teeth involved in restoration. He stated that the Navy had provided him with a dental prosthesis that caused damage to the teeth to which the prosthesis was attached. He reported that issue had affected his speech patterns, ability to eat, and caused swelling and pain. The loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity is covered under Diagnostic Code 9913. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). Under that diagnostic code, a 0 percent rating is warranted where the loss of masticatory surface can be restored by a suitable prosthesis. Various compensable ratings are warranted when some teeth cannot be restored by a suitable prosthesis. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). Initially, the Board notes that ratings under Diagnostic Code 9913 are only warranted for bone loss through trauma or disease such as osteomyelitis, and not for the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2012). In this case, the evidence of record indicates that the Veteran's additional tooth loss may be due to periodontal disease, thus rendering Diagnostic Code 9913 inapplicable. However, for simplicity, the Board shall set aside that argument and assume for purposes of this analysis that the additional missing teeth qualify for a rating under Diagnostic Code 9913. The medical evidence of record shows that the Veteran's dental disability is manifested by missing teeth which can be restored by a suitable prosthesis. The Board notes that the medical evidence of record does not contain records documenting which teeth he has specifically lost, only a May 1995 private dental report which discussed the various replacement options. However, the Board finds that a remand to obtain that information would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426 (1994). Specifically, such a remand would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran as the evidence of record clearly demonstrates that all of the Veteran's missing teeth can be restored by a suitable prosthesis. The Veteran himself has repeatedly stated that he is seeking an increased rating specifically because his old 4 unit dental bridge caused additional dental decay which caused him to obtain a 10 unit dental bridge. Under certain circumstance, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313 (2009). However, such etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran is competent to state that he currently has a 10 unit dental bridge which covers his additional missing teeth. The Board also finds the Veteran's statements credible, as they are consistent with the preferred dental plan listed in the May 1995 private dental report. Accordingly, the evidence of record demonstrates that the Veteran's missing teeth are treated with a 10 unit dental bridge. The Board emphasizes that the simple fact that the Veteran's missing teeth have been treated with a dental bridge demonstrates that they can be restored by a suitable prosthesis. Accordingly, a compensable rating is not warranted under Diagnostic Code 9913. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). The Board has also considered rating the Veteran's dental disability under all other applicable diagnostic codes. However, there is no evidence of record that the Veteran's dental disability has ever been manifested by osteomyelitis, loss of any part of the mandible, maxilla, ramus, or hard palate; malunion or nonunion of the mandible or maxilla; limitation of motion of temporomandibular articulation; or loss of one or more condyloid or coronoid processes. Furthermore, the evidence does not show any arthritis as a result of the fracture. Therefore, a rating in excess of 0 percent is also not warranted under Diagnostic Codes 5003, 9900, 9901, 9902, 9903, 9904, 9905, 9906, 9907, 9908, 9909, 9911, 9912, 9914, 9915, and 9916, at any point during the period on appeal. 38 C.F.R. §§ 4.71a, 4.150, Diagnostic Codes 5003, 9900, 9901, 9902, 9903, 9904, 9905, 9906, 9907, 9908, 9909, 9911, 9912, 9914, 9915, 9916 (2012). Generally, rating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. When service-connected disability affects employment in ways not contemplated by the rating schedule, § 3.321(b)(1) is applicable. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disabilities rating for his dental disability inadequate. The Veteran's dental disability was rated under 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012), the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's dental disability is manifested by loss of teeth which can be restored by a suitable prosthesis. When comparing that disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for his dental disability. A rating in excess of the currently assigned rating is provided for certain manifestations of dental disabilities such as loss of all upper and lower teeth on one side, all anterior upper teeth, or all anterior lower teeth that is not restorable by suitable prosthesis. However, the medical evidence does not show that those manifestations are present. The Board finds that the criteria for a 0 percent rating for the Veteran's dental disability reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular rating is adequate and no referral is required. Furthermore, the evidence does not show marked interference with employment or frequent hospitalization due to the disability. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996); 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). The Board finds that the preponderance of the evidence is against the claim for and increased rating for fracture, bilateral at neck of condyles of mandible. Therefore, the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Massey v. Brown, 7 Vet. App. 204 (1994). ORDER A rating in excess of 0 percent for fracture, bilateral at neck of condyles of mandible, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs