Citation Nr: 1319234	
Decision Date: 06/13/13    Archive Date: 06/21/13

DOCKET NO.  10-18 387	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an increased (compensable) rating for bilateral jaw fractures. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. J. Vecchiollo



INTRODUCTION

The Veteran served on active duty from March 1951 to December 1953.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 

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).


FINDING OF FACT

The preponderance of the evidence shows that the Veteran has no residual disability due to his service-connected bilateral jaw fractures.  


CONCLUSION OF LAW

The criteria for a compensable evaluation for service-connected bilateral jaw fractures are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 9904, 9905 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, 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.  38 U.S.C.A. § 5103(a).  

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).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  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).

The RO provided the appellant pre-adjudication notice by letter dated in July 2009.  The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence.  

VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the Veteran VA examinations in August 2009, August 2010 and in July 2012 and obtained medical opinions as to the nature, extent and severity of disability.  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.  

The Veteran's representative asserts that the VA examinations of record do not adequately consider the Veteran's limitation of jaw motion due to pain, and another examination is necessary prior to a resolution of this claim.  As will be discussed below, the VA examiner has repeatedly opined that any painful motion or limitation of function of the temporomandibular joint (TMJ) is due to nonservice-connected conditions.  Any such, any loss of function cannot be considered in the increased rating claim.  Therefore, the Board finds that the examinations of record are adequate to resolve the increased rating claim.  

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

The Veteran requests an increased rating for his service-connected bilateral jaw fractures.  He asserts that he has jaw pain, to include with jaw motion, paresthesias of the jaw, and difficulty chewing.    

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule).  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the 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 the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  

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; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  

In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that evidence to be considered in the appeal of an assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In Hart, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  

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 (2012).  Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant.  38 C.F.R. § 4.3 (2012).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

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 malunion of the mandible, under Diagnostic Code 9904, was a residual condition.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  See Butts v. Brown, 5 Vet. App. 532 (1993).

Diagnostic Code 9904 provides for a noncompensable disability rating for malunion of the mandible with slight displacement; a 10 percent disability rating for malunion of the mandible with moderate displacement; and a 20 percent disability rating for malunion of the mandible with severe displacement.  38 C.F.R. § 4.150, Diagnostic Code 9904.  A note following the criteria states that the impairment is dependent upon the degree of motion and relative loss of masticatory function.  Id. 

The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence.  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Diagnostic Code 9905, which pertains to limitation of motion of temporomandibular articulation, is also potentially applicable.  A 10 percent rating is for assignment when the range of lateral excursion is limited from 0 to 4 mm or the inter-incisal range is limited to 31 to 40 mm.  A 20 percent rating is applicable when the inter-incisal range is limited to 21 to 30 mm.  A 30 percent rating is warranted when the inter-incisal range is limited to 11 to 20 mm.  A maximum 40 percent rating is assigned when the range is limited to 0 to 10 mm.  A Note to Diagnostic Code 9905 states that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion.

When evaluating joint disabilities rated on the basis of limitation of motion, such as Diagnostic Code 9905, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

Having carefully considered the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to a compensable rating for the Veteran's jaw disability. 

The medical evidence of record, i.e., the August 2009, August 2010, and July 2012 VA dental examinations, do not report any displacement due to malunion of the mandible.  38 C.F.R. § 4.150, Diagnostic Code 9904.  In fact, all the examinations note that the Veteran does to have any residual disability from his service-connected jaw fractures.  

Turning to consideration of Diagnostic Code 9905, the Board notes that on August 2009 VA examination, the examiner stated that there was no limitation of TMJ motion.  The diagnosis was none, and that the Veteran sustained jaw fracture that was treated normally with no residual disability.  On August 2010 VA examination, after review of the Veteran's claims file, as well as on July 2012 VA examination, the examiner confirmed his earlier opinion of no residual disability due to the service-connected disability.  On July 2012 VA examination, the Veteran stated he had continuing issues with wearing dentures that he believed were related to his service-connected disability.  In August 2009 and July 2012, the examiner informed the Veteran and his son that the Veteran's jaw fractures healed without residual disability, and the Veteran's symptoms were not related to the service-connected disability, but instead due to his dentures.  In light of the VA dental examiner's opinion specifically disassociating the Veteran's dental symptoms, including any painful motion or loss of function of the TMJ, is due to nonservice-connected condition, it cannot considered when assigning a disability rating.  38 C.F.R. § 3.102; Mittleider, 11 Vet. App. at 182.  Consequently, the criteria for a compensable disability rating under Diagnostic Code 9905 are not met. 

In reaching its decision, the Board has considered the Veteran's statements regarding his jaw symptoms.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's dental symptoms are caused by his service-connected jaw fractures or his nonservice-connected dentures, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  

The Board has considered whether an increased disability rating is warranted under other potentially applicable diagnostic codes.  Other diagnostic codes provide compensable ratings for dental and oral conditions.  38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.  These require osteomyelitis or osteoradionecrosis, loss of the substance of the mandible, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of the substance of the maxilla, or malunion or nonunion of maxilla.  Id.  The Veteran does not have osteomyelitis or osteoradionecrosis, involvement of the maxilla or hard palate, or loss of or loss of the substance of any bone due to his service-connected disability.  The Board concludes that a compensable rating is not warranted under these alternative rating criteria, under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.

Finally, the Board finds that the preponderance of the evidence weighs against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a compensable rating for bilateral jaw fractures is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. 

Extraschedular Evaluation

The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating.  See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1). 

In this case, the Board finds that referral for extraschedular consideration is not warranted.  As shown in the above discussion, disability due to the Veteran's service-connected bilateral jaw fractures is contemplated and reasonably described by the rating criteria.  Id.  The Veteran does not have symptoms associated with this disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating.  See Thun, 22 Vet. App. at 115.  Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's bilateral jaw fractures present "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).  

Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability.  In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Therefore, referral for extraschedular consideration is not warranted.   

Total Compensation Rating Based on Individual Unemployability

A total disability rating based on individual unemployability due to service-connected disability (TDIU) is an element of any appeal for an increased evaluation.  Rice v. Shinseki, 22 Vet. App. 447 (2010).  In this case, however, TDIU consideration is not warranted.  The Veteran has not contended, and the evidence does not indicate, that the Veteran is unemployable as a result of his bilateral jaw fractures, which does not cause any functional impairment. 


ORDER

An increased rating for bilateral jaw fractures is denied.  




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

Department of Veterans Affairs