Citation Nr: 1336051 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-18 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a compensable rating for residuals of a fractured maxilla. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran retired from active duty in January 1966 after completing more than 20 years of service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran requested his Travel Board hearing scheduled for September 2013 be canceled and his claim be decided on the current record. Accordingly, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). The matter of service connection for macular degeneration has been raised by the record on the Form 9 dated June 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 residuals of a fractured maxilla. CONCLUSION OF LAW The criteria for a compensable evaluation for service-connected residuals of a fractured maxilla 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 9916 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, 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, 1277 (2009). Here, the Veteran was sent a letter in August 2009 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. 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 treatment 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). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). Regulations and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Under Diagnostic Code 9916, malunion or nonunion of the maxilla warrants a noncompensable evaluation when it is manifested by slight displacement. When manifested by moderate displacement, malunion or nonunion of the maxilla is evaluated at 10 percent. When manifested by severe displacement, a 30 percent evaluation is warranted. 38 C.F.R. Part 4, Diagnostic Code 9916. The Veteran indicated in a September 2009 letter that he first started receiving treatment in a VA facility for his teeth in 1972; mostly annual cleaning, fillings and extractions. He indicated that approximately three years prior, he had lost many of his teeth and the VA made plates that would fit over his remaining teeth. The Veteran indicated in a December 2009 letter that the loss of his teeth was due to damage done to his jaws in-service and that he began losing his teeth at fifty years of age, which would be about ten years post-service and more than twenty-five years after the initial accident which damaged his maxilla. The Veteran was examined to determine the residuals of his fractured maxilla in September 2009. The examiner indicated that there was no evidence of a broken maxilla at present and indicated that the Veteran had lost 16 of his teeth. The inter-incisor range of motion was 30 mm; there was no pain on right excursion; no pain on protrusion, retrusion, or opening or closing; popping on the left lateral TMJ on right lateral excursion; with moderate to advanced bone loss. The Veteran was afforded an additional VA dental examination in February 2010 with the same examiner in order to determine if tooth loss is a residual of the service-connected fractured maxilla. The examiner indicated that the maxilla had healed within normal limits and there was no loss of function or articulation. She indicated that the inner incisor distance was 30 mm; opening and closing protrusion and retrusion were within normal limits; the right lateral excusion had popping on the left condyle; the left lateral excusion was within normal limits; and there was no pain present on all excursions. There were no pins, plates or any evidence of a broken maxilla on the x-ray testing. The examiner indicated that she had reviewed the claims file to include service treatment records. She opined that the Veteran's bone loss resulting in the loss of additional teeth and bone is not related to the service-connected maxillary fracture and that to state that such was related to the service-connected disability would be resorting to speculation. The examiner indicated that poor dental hygiene had resulted in gingivitis, calculus build up and loss of teeth and bone. In this case, the evidence does not show that the Veteran's in-service fracture of the left maxilla results in current displacement of the maxilla. There is no resulting limitation of function in the jaw and no pain on motion or deformity on objective testing. Thus, the criteria for a compensable rating under Code 9916 have not been met. Loss of teeth due to loss of substance of the body of the maxilla or mandible is rated under 38 C.F.R. § 4.150, Diagnostic Code 9913. In this case, however, the Board finds that a compensable rating is not warranted under this provision. Diagnostic Code 9913 further provides that a compensable rating may only be assigned where loss of teeth is due 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. In this case, at the February 2010 VA dental examination, the examiner noted that the loss of the Veteran's teeth was not a residual of the Veteran's service connected maxilla fracture. Rather, the medical evidence shows that the most recent loss of the Veteran's teeth was due to periodontal disease resulting from poor dental hygiene. The Board has also considered Diagnostic Codes 9914 and 9915. Under these provisions, a compensable rating can be assigned where there is loss of some of the maxilla. In this case, however, the record contains no indication that the Veteran has any loss of his maxilla. As such, a compensable rating under Diagnostic Code 9914 or 9915 is not warranted. The Veteran's lay testimony indicates that his tooth loss is a residual of his fractured maxilla. Here, however, due to the passage of time, the reported delay between the fractured maxilla and tooth loss, and the systemic nature and the number of etiologies possible for the loss of bone and teeth, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. Thus, the preponderance of the evidence indicates that the residuals of a maxilla fracture do not warrant a compensable rating at this time. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected maxilla residuals, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER A compensable rating for residuals of a fractured maxilla is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs