Citation Nr: 1334419 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-24 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a compensable initial rating for loss of teeth 2 and 3 with prosthesis, residual of squamous cell carcinoma of the right palate and maxilla. 2. Entitlement to a compensable initial rating for partial loss of hard palate and maxilla with prosthesis, residual of squamous cell carcinoma of the right palate and maxilla. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to July 1970. This case was previously before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Wichita Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for the disabilities on appeal. The Veteran disagreed with the ratings assigned. In March 2010, a hearing was held before a Veterans Law Judge (VLJ) who has since retired from the Board. In an April 2012 letter, the Veteran was informed of his right to request a hearing to be conducted by a VLJ who will decide his case. See 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. This letter informed him that if he did not respond within 30 days, it would be assumed that he did not want another hearing and that the Board would proceed accordingly. As more than 30 days has elapsed since this letter with no response, an additional hearing is not desired. The issues on appeal were previously remanded by the Board in September 2012 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA examination for the Veteran's dental disabilities. This was accomplished, and the claims were readjudicated in an August 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran's loss of teeth is manifested by restorable masticatory surface by a suitable prosthetic. 2. The Veteran's loss of hard palate is manifested by loss of less than one-half of the hard palate, restorable by prosthesis. 3. The Veteran's loss of maxilla is manifested by loss of 25 percent to 40 percent of the maxilla, replaceable by prosthesis. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for loss of teeth 2 and 3 with prosthesis, residual of squamous cell carcinoma of the right palate and maxilla, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Code (DC) 9913 (2013). 2. The criteria for an initial rating of 30 percent rating, but no higher, for partial loss of hard palate and maxilla with prosthesis, residual of squamous cell carcinoma of the right palate and maxilla, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and DC 9915 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under DC 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. The evidence of record, to include the February 2011, December 2012, and August 2013 VA dental examination reports shows that the Veteran's service-connected dental disability has resulted in the loss of teeth numbered 2 and 3, which have been replaced with an obturator (removable partial denture). Further, according to a July 2010 medical treatment note by Drs. T.T. and the December 2012 VA examiner, the restoration of the obturator and prosthesis enables the Veteran to eat, drink, and converse. For these reasons, the Board find that the loss of teeth numbered 2 and 3 do not more nearly approximate a compensable rating as the loss of masticatory surface is restored by a suitable prosthesis. Next, the Board finds that the Veteran's second dental disability more nearly approximates a 30 percent disability rating as there is evidence that his dental disability involves partial loss of the maxilla. Under DC 9914, loss of more than half of the maxilla is rated at 50 percent disabling if replaceable by prosthesis or as 100 percent disabling if not replaceable by prosthesis. Under DC 9915, loss half or less (25 to 50 percent) of the maxilla is rated at 30 percent disabling if replaceable by prosthesis or as 40 percent disabling if not replaceable by prosthesis. Also under this code, loss of less than 25 percent of the maxilla is rated noncompensable disabling if replaceable by prosthesis or as 20 percent disabling if not replaceable by prosthesis. The December 2012 VA examiner noted that there was approximately 40 percent of loss of bone of the maxilla. A subsequent July 2013 VA examination report found that the Veteran had approximately 25 percent of the maxilla removed. The VA examinations of record demonstrate that the Veteran's dental disabilities are replaceable with prosthesis, specifically an obturator. Therefore, because the weight of the evidence of record demonstrates that the Veteran has loss of 25 to 40 percent of the maxilla, replaceable by prosthesis, the Board finds that a 30 percent rating is warranted. The Board has also considered other applicable ratings. Under DC 9911 a loss of half or more of the hard palate that is replaceable by prosthesis is rated 10 percent. Where the loss is not replaceable by prosthesis, a 30 percent rating is warranted. DC 9912 further contemplates that 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. In a May 2008 VA examination report, it was stated that, "there is a 60 percent defect (missing) of the right posterior hemipalate which involves both the soft and hard palate." That notwithstanding, the May 2008 VA examiner did not indicate what percentage of the hard palate was missing. As this report did not provide sufficient detail of the percentage of removal at issue, the Board finds the May 2008 VA examination report to be of little probative value. In a December 2012 VA examination and January 2013 addendum opinion, requested pursuant to the Board's September 2012 remand, the VA examiner noted that the Veteran had a loss of 40 percent of the hard and soft palate. In a July 2013 VA medical examination report and August 2013 VA medical opinion, the VA examiners noted that the Veteran had lost approximately 25 percent of the hard palate due to surgery as a result of oral cancer. The examiners stated that the loss of the hard and soft palate was replaceable by the obturator enabling the Veteran to eat, drink, and converse. Therefore, because the Veteran's loss of hard palate was less than half and is replaceable by prosthesis, a compensable rating under DCs 9911 and 9912 is not warranted. Further, the Board finds that a separate rating under DC 9916, for which the highest rating permitted is 30 percent for "severe" displacement of the maxilla, is not for application as the Veteran is already in receipt of a 30 percent rating under DC 9915. Although the December 2012 VA examiner found that the Veteran's malunion of the maxilla was "moderate" in nature, which would warrant a 10 percent rating under DC 9916, a separate rating under DC 9916 would violate the rule against pyramiding under 38 C.F.R. § 4.14, as the symptoms associated with the malunion or nonunion of the maxilla are implicitly contemplated by DC 9915 and DC 9916 which discuss partial loss of the maxilla. For these reasons, the Board finds that the criteria for an initial rating of 30 percent rating, but no higher, for partial loss of the maxilla with prosthesis, residual of squamous cell carcinoma of the right palate and maxilla, have been met. The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b) (1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's dental disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Specifically, the schedular rating criteria, DCs 9911 to 9916, provide for ratings based on a combination of clinical findings and slight, moderate, or severe symptoms. In this case, considering the lay and medical evidence, the Veteran's loss of teeth is manifested by restorable masticatory surface by a suitable prosthetic. The loss of hard palate is manifested by loss of less than one-half of the hard palate and loss of 25 percent to 40 percent of the maxilla, replaceable by prosthesis. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2013). In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above. In the absence of exceptional factors associated with the dental disorders, the Board finds that the criteria for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant 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 claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran's dental claims arose from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records, VA and private treatment records, VA examination reports, a hearing transcript, and various lay statements have been associated with the claims file. The Board notes specifically that the Veteran was afforded VA examinations in May 2008, February 2011, December 2012, January 2013 (addendum opinion), July 2013, and August 2013. As noted above, the Board finds that May 2008 VA examination report to be of little probative value. The Board further finds the remaining VA examinations are adequate as they contain a description of the history of the disability at issue, document and consider the reported complaints and symptoms, and address the relevant rating criteria. Accordingly, the Board finds that the February 2011, December 2012, January 2013 (addendum opinion), July 2013, and August 2013 VA examinations to be adequate and probative in this case and VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, the neither the Veteran nor his representative has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). (CONTINUED ON NEXT PAGE) ORDER A compensable initial rating for loss of teeth 2 and 3 with prosthesis, residual of squamous cell carcinoma of the right palate and maxilla, is denied. An initial rating of 30 percent, but no higher, for partial loss of the maxilla with prosthesis, residual of squamous cell carcinoma of the right palate and maxilla, is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs