Citation Nr: 1313828 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 10-02 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include as secondary to exposure to asbestos in service. 2. Entitlement to service connection for residuals of a head injury, characterized as brain disease and memory loss. 3. Entitlement to a compensable initial rating for residuals of a compound fracture of the right body of the mandible (mandible disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from February 1963 to September 1966; his military occupation specialty (MOS) was boatswain's mate. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In June 2011, the Board of Veterans' Appeals (Board) denied service connection for prostate cancer, claimed as due to herbicide exposure, and remanded the issues listed on the title page to obtain Social Security Administration (SSA) records and VA examinations and nexus opinions. SSA records were added to the claims file, as were pertinent VA evaluations with nexus opinions dated in July and August 2011. As SSA records and VA evaluations with nexus opinions have been added to the claims files in response to the Board remand, there has been substantial compliance with the June 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). FINDINGS OF FACT 1. The most probative competent and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a respiratory disorder that is causally related to his active military service, to include exposure to asbestos. 2. The most probative competent and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has residuals of head trauma that are causally related to his active military service. 3. The most probative competent and credible evidence of record shows no more than slight displacement of the mandible, with no limitation of range of motion of the mandible, with an inter-incisal opening that is greater than 40 mm (41mm) and bilateral lateral excursion greater than 4 mm. CONCLUSIONS OF LAW 1. A respiratory disorder was not incurred or aggravated by active service, to include as secondary to exposure to asbestos. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Chronic residual disability of head injury was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for a compensable initial evaluation for service-connected residuals of a compound fracture of the right body of the mandible are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 9999-9904 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in January 2009, prior to initial adjudication of the claims for service connection, which informed him of the requirements needed to establish entitlement to service connection for the disabilities at issue. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. He was also advised of the criteria for assignment of a disability rating, and/or effective date, in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection was subsequently granted for malunion of the mandible by the May 2009 rating decision on appeal. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3) (2012). The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations. Duty to Assist VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA evaluations of the respiratory system and residuals of a head injury, with nexus opinions, as well as current symptoms involving the mandible, were obtained in July and August 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the 2011 VA examinations obtained in this case are adequate. The Veteran's claims file was reviewed, and clinical examination findings were reported. The opinions considered all of the pertinent evidence of record, to include the Veteran's medical records and examination findings, and provided a rationale for each opinion stated. Evaluation of the mandible in 2011 provided the Veteran's current symptomatology pertinent to the criteria for rating the disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claims Service Connection Claims The Veteran seeks service connection for a respiratory disorder, to include as secondary to service exposure to asbestos, and for residuals of head injury. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Respiratory Disorder The Veteran seeks service connection for a respiratory disorder, which he contends is due to his exposure in service to asbestos or silica from his duties involving sand blasting with silica sand. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The Veteran's service treatment reports reveal that he complained in March and April 1964 of wheezing and difficulty breathing. His respiratory system was normal on discharge evaluation in September 1966. VA treatment reports from January 1994 to July 1997 reveal that the Veteran had asthma in January 1994. The diagnoses in January 1995 were asthma, well controlled; and allergic rhinitis. The Veteran's asthma was reported to be stable in March and July 1996. VA treatment reports from June 2002 to July 2011, which include records in Virtual VA, reveal that it was noted in November 2004 that the Veteran had long-standing asthma. Pulmonary function studies were consistent with moderately severe obstruction and that it was possible that he might have permanent airway obstruction changes from long-standing asthma and smoking. A September 2005 CT of the abdomen showed a lung nodule at the left lower lung base, which was not seen on a CT scan in April 2006. Chest X-rays in January 2007 did not show any cardiopulmonary disease. The diagnosis in January 2007 was upper respiratory infection with bronchitis. The Veteran had lung complaints in September 2007. He reported in February 2009 that he had had asthma for approximately 20 years. The Veteran was provided a VA respiratory system evaluation in July 2011. The Veteran's possibly exposure to silica from sand blasting was noted. After review of the claims files and examination of the Veteran, the examiner diagnosed asthmatic bronchitis and concluded that it was less likely than not related to service. The examiner found that the Veteran's exposure to asbestos in service was minimal and that his condition was not due to service exposure to silica because this is not a notable cause of airway disease and there is no medical evidence that the Veteran has silicosis. Additional reasons for not finding a link to exposure to silica were because chest X-rays did not show any evidence of interstitial lung disease and because a pattern in his pulmonary function tests in 2004 and 2005 were compatible with air trapping of airways disease rather than low volumes of restrictive disease. The examiner noted that he would provide an addendum only if new pulmonary functions tests did not support the above analysis. No subsequent addendum is of record. VA treatment records in Virtual VA, dated from August 2011 through January 2012, reveal findings of an obstructive ventilator defect. The above medical evidence does not include objective evidence showing that the Veteran has a respiratory disorder related to service, including related to exposure to asbestos in service. The Veteran's MOS was boatswain's mate. Even if it is conceded that the Veteran's military occupation involved exposure to asbestos, there has been no demonstration by competent evidence that a current respiratory disability is due to such exposure, or otherwise due to service. Although the Veteran complained in March and April 1964 of breathing problems, no chronic respiratory disorder was found in service, including on discharge evaluation in September 1966. The initial post-service evidence of respiratory disability was not until 1994, more than 27 years after discharge, when asthma was diagnosed. Asthmatic bronchitis was diagnosed in August 2011, and the VA examiner concluded, after review of the claims files and examination of the Veteran, that the Veteran's respiratory disorder is not related to service, to include exposure to either asbestos or silica, because there is no evidence of more than minimal exposure to asbestos and because the Veteran's obstructive disease is not compatible with exposure to silica. Consequently, service connection for a respiratory disorder, to include as due to exposure to asbestos, is not warranted. The lay statements from the Veteran have been taken into consideration in this decision. Although the Veteran is competent to report his subjective symptoms, such as lung discomfort, he is not competent to diagnose a respiratory disorder as due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in a case involving the complex medical matter of asthmatic bronchitis. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). He has not been shown to have medical training. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim for service connection for a respiratory disorder, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of a Head Injury The Veteran's service treatment records reveal that he was hospitalized from December 1963 to February 1964 with a fracture of the mandible due to a fight; he underwent closed reduction of the fracture. His head, psychiatric and neurological systems were normal on discharge medical examination in September 1966. When evaluated in March 2009, which included review of the claims files, the Veteran complained of anxiety and panic attacks, as well as memory loss. The examiner concluded that the Veteran's memory loss was probably age related. The Veteran complained on VA evaluation in July 2011 of mild memory loss, attention, concentration, or executive function; however, it was reported that there was no objective evidence to support this claim on testing. He was noted to be mildly anxious. The diagnoses were normal neurological examination and no sequelae of traumatic brain injury. After review of the claims files and examination of the Veteran, the examiner concluded that the Veteran's complaints of anxiety and panic began in childhood and were not related to service. The above medical evidence does not include objective evidence showing that the Veteran has current residuals of a head injury related to service. Although his jaw was fractured in a fight in service, there is no evidence in service of a brain injury related to the fight; his head was normal on discharge examination in September 1966. Additionally, VA evaluations in March 2009 and July 2011, which included review of the claims files and examination of the Veteran, do not find any residual of a head injury due to service. Consequently, service connection for residuals of a head injury is not warranted. The lay statements from the Veteran have been taken into consideration in this decision. Although the Veteran is competent to report his subjective symptoms, such as memory loss, he is not competent to diagnose residuals a head injury due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in a case involving the complex matter of residuals of a head injury. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). He has not been shown to have medical training. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim for service connection for residuals of a head injury, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Claim The May 2009 rating decision on appeal granted service connection for a disability of the mandible and assigned a noncompensable initial rating effective from November 25, 2008, under Diagnostic Codes 9999-9904. The Veteran timely appealed the assigned rating. 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 Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially 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). 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). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See Byrd v. Nicholson, 19 Vet. App. 388 (2005). 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. As background, the Veteran's service treatment reports reveal that he was involved in a fight during service in December 1963, which resulted in an open compound fracture of right body of the mandible, with closed reduction of the fracture. It was noted on VA dental evaluation in March 2009 that the Veteran had had multiple loss of teeth after service, resulting in his use of dentures. He had not lost any teeth as a result of the jaw fracture. His only current problem was occasional clicking with momentary slight pain, approximately once every two weeks. No clicking was detected on examination, and he did not complain of any loss of motion or function due to jaw pain. Range of motion included a maximum opening of 48 mm, left lateral excursion of 2 mm, and right lateral excursion of 5 mm. There was no bone loss of the mandible, maxilla, or hard palate. It was noted on VA dental evaluation in August 2011 that the Veteran had fractured the right body of the mandible in December 1963, which was reduced without complication; he had received routine dental care since service. He complained of numbness of the lips. The Veteran wore an older complete upper denture; he did not wear a lower partial. According to the examiner, the Veteran's upper denture was loose and needed to be relined. Occlusion with his upper denture was stable and class I. He could open 40 mm wide with ease; he could move his mandible in right and left lateral excursions, 12 mm to the right and 14 mm to the left. There was no clicking or popping noted on opening and closing. A small area of scar tissue was reported inside the Veteran's lower right lip; the entire lower lip was responsive to stimuli, with no area of numbness noted in the lower lip or chin. The examiner noted that the Veteran did not mention any lip numbness when examined in March 2009 and concluded that the Veteran's complaints of numbness did not appear to be associated with his fractured jaw. Having carefully considered the evidence of record, the Board finds that an initial compensable rating is not warranted for the Veteran's mandible disability. The medical evidence of record, meaning the March 2009 and August 2011 VA evaluation reports, do not report any displacement due to malunion of the mandible. 38 C.F.R. § 4.150, Diagnostic Code 9904. Turning to consideration of Diagnostic Code 9905, the Board notes that although left lateral excursion was reported to be 2 mm to the left in March 2009, which would warrant a 10 percent rating, this finding is inconsistent with the other evidence of record, as the Veteran did not complain in March 2009 or August 2011 of loss of jaw motion or function. Additionally, left lateral excursion in August 2011 was to 14 mm. It was noted in August 2011 that the Veteran could open 40 mm wide with ease. Although a 10 percent rating is assigned when motion of the jaw is limited to 31 to 40 mm, a 10 percent rating is not warranted in this case because the Veteran could open his jaw 40 mm with ease and because he could open his mouth to 48 mm in March 2009 and there is no evidence of an increase in disability of the mandible between March 2009 and August 2011. Consequently, the criteria for an initial 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. The Board finds that the Veteran is competent to report symptoms, such as clicking and lip numbness. However, here, the clinical evidence pertaining to the Veteran's jaw disability is more probative for the purposes of assigning a current rating for the disability at issue in conjunction with the relevant rating criteria. The examiner in March 2009 was unable to detect any clicking, and the findings in August 2011 were not indicative of lip numbness. - 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 initial rating for disability of the mandible 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, the Veteran's service-connected disability of the mandible is contemplated and reasonably described by the rating criteria, which account for displacement of the mandible and loss of motion of the jaw. 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 mandible disability presents "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 disability of the mandible, which does not cause any functional impairment. ORDER Service connection for a respiratory disorder, to include as secondary to exposure to asbestos, is denied. Service connection for residuals of a head injury is denied. A compensable initial rating for disability of the mandible is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs