Citation Nr: 1801452 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-14 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent prior to November 9, 2015, for status post lumbar surgery with resultant lumbar spine fracture (hereafter "back disability"). 2. Entitlement to a rating in excess of 40 percent beginning November 9, 2015, for a back disability. 3. Entitlement to service connection for a dental disability, claimed as removal of tooth number 9, for compensation purposes. 4. Entitlement to service connection for a dental disability for purposes of dental outpatient treatment. 5. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: Barbara B. Harris, Attorney ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from October 1978 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) from the June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Jurisdiction is now with the Pittsburgh, Pennsylvania RO. In November 2014, the Board denied an increased rating for the Veteran's back disability. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In September 2015, the Court vacated the Board's November 2014 decision in a Joint Motion for Remand (JMR) and remanded the matter consistent with its ruling. This matter was again previously before the Board in February 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to increased ratings for a back disability prior to and after November 9, 2015, as well as entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current dental disability for which service connection may be granted for compensation purposes. 2. The Veteran sustained dental trauma during his service while in the performance of his military duties, which ultimately led to tooth loss. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2017). 2. The criteria for Class II(a) eligibility for VA outpatient dental treatment have been met. 38 U.S.C. § 1712 (West 2014); 38 C.F.R. §§ 3.381, 17.161 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, a VCAA letter was sent to the Veteran in February 2011 and the Veteran underwent a VA examination in December 2016. Therefore, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Compliance with Prior Board Remands The Board observes that this case was previously remanded by the Board in February 2016. The purpose of this remand was to schedule the Veteran for a VA examination. Upon remand, the Veteran underwent a VA examination in December 2016. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). III. Service Connection Generally Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the context of dental claims, the Court has specifically held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). Thus, adjudication of the Veteran's claim for service connection for compensation purposes must also include consideration of service connection for the purpose of establishing eligibility for outpatient dental treatment as set forth in 38 C.F.R. § 17.161. Disability compensation may be provided for certain specified types of service connected dental disorders. 38 C.F.R. § 4.150. For other types of dental disorders, a veteran may be entitled to service connection for the purpose of outpatient dental treatment only. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Service connection for compensation purposes can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, and loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. For other types of dental disorders not listed under 38 C.F.R. § 4.150, a veteran may be entitled to service connection for the purpose of outpatient dental treatment only. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Various categories of eligibility exist for VA outpatient dental treatment. 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161. Relevant to the claim at hand, eligibility for VA outpatient dental treatment may be established for veterans who have a noncompensable service connected dental condition or disability adjudicated as resulting from combat wounds or other service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 17.161 (c) (Class II(a) eligibility). Regulations governing dental claims make a fundamental distinction between "replaceable missing teeth," see 38 C.F.R. § 3.381 (b), and teeth lost as a result of loss of substance of body of maxilla (upper jaw bone) or mandible (lower jaw bone) due to trauma or disease such as osteomyelitis, and not the loss of alveolar process as a result of periodontal disease. See 38 C.F.R. § 4.150; see also Simmington v. West, 11 Vet. App. 41, 44 (1998). Replaceable missing teeth may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. See 38 C.F.R. § 3.381 (b). IV. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends throughout the record that during a field exercise in the 1980's, he was using an artillery simulator and a branch let go and hit him in the mouth. The Veteran stated that his mouth swelled up, radiographs were taken, and it was recommended to extract tooth number 9. The Veteran's service treatment records indicate that the Veteran's upper front tooth (tooth number 9) underwent scrutiny as early as May 1982 after a radiograph was taken. However, the radiograph was not present within the service treatment records. In May 1988, tooth number 9 was again mentioned when an immediate partial was recommended to replace tooth number 9 due to a "perio apical lesion: erio/endo." Although no comment was made as to the cause of the condition. Tooth number 9 was deemed non-restorable and extracted in May 1988 and an immediate treatment partial was inserted. Additional treatment partials replacing the tooth were made and inserted in April 1991 and November 1991. The December 2016 examiner ultimatley opined that although the Veteran's service treatment records do not indicate the reason for the loss of the Veteran's tooth, the examiner has no reason to doubt the Veteran's account of the injury and that tooth number 9 was lost as a result of service related trauma. Regarding entitlement to service connection for compensation, the Board finds that the criteria for service connection for teeth or dental problems have not been met. See 38 C.F.R. §§ 3.303, 3.381, 4.150. Under current VA regulations, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, loss of a portion of the maxilla, and loss of teeth if such is due to loss of substance of body of maxilla or mandible. 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities and will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Therefore, there is no evidence of record that demonstrates the Veteran has a dental disorder which would entitle him to service connection for compensation purposes. While the record establishes loss of tooth number 9, the Board places significant weight on the December 2016 VA dental examination report which documents that the Veteran's tooth loss is not due to loss of substance of body of the mandible or maxilla. Therefore, service connection for a dental disorder for compensation purposes must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Next, the Board turns to whether entitlement to service connection is warranted for a dental disorder solely for the purpose of determining eligibility for outpatient dental treatment. Replaceable missing and broken (fractured) teeth may be considered service connected solely for the purposes of determining entitlement to dental examinations or outpatient dental treatment. See Simington, 11 Vet. App. at 44. Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of an external physical force during the service member's performance of military duties. See Nielson v. Shinseki, 607 F.3d 802 (2010) (holding that "service trauma" in 38 U.S.C. § 1712 (a)(1)(C) means an injury or wound produced by an external physical force during the service member's performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice). The record includes competent evidence that the Veteran sustained in-service trauma to his head during the performance of his military duties. Based on the foregoing, the Board finds that the Veteran meets the requirements for Class II(a) VA outpatient dental treatment. See 38 C.F.R. § 17.161 (c). Therefore, the appeal is granted to that extent only. ORDER Service connection for a dental disability for compensation purposes is denied. Entitlement to Class II(a) VA outpatient dental treatment is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Veteran's back disability is currently rated as 20 percent disabling prior to November 9, 2015, and 40 percent thereafter under diagnostic code 5242. 38 C.F.R. § 4.71a. A rating of 20 percent disabling is not warranted unless the evidence demonstrates forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A rating of 40 percent disabling is not warranted unless the evidence demonstrates forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. Id. A 50 percent rating is not warranted unless there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is only warranted for unfavorable ankylosis of the entire spine. Id. Additionally, a higher evaluation of 40 percent is not warranted for intervertebral disc syndrome (IVDS) unless the evidence shows IVDA with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, occurring during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note(5) regarding the back diagnostic codes states the following: For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Note (5). The Board notes that the Veteran is also service connected for radiculopathy of the left and right lower extremities that is secondary to the back disorder. That rating is not currently on appeal. The evidence shows that the Veteran was treated for a back problem during service and underwent a Medical Board separation in September 1992. In March 2011, the Veteran underwent a VA examination. The Veteran reported that he initially injured his back in 1983 after falling off of a cliff. The Veteran reported that after this fall his back pain persisted and he eventually developed numbness of his legs and corresponding weakness. In March 1985, the Veteran underwent a lumbar spine discectomy L5-S1. The Veteran reported bladder control problems, incontinence, and that both of his legs were numb. In October 2010, the Veteran underwent a lumbar spine fusion surgery. The Veteran stated that he has mild occasional numbness of the left foot but that the pain still radiates down both legs. The Veteran reported that he has daily pain that is aggravated with sitting or standing for any period of time. The Veteran stated that since he was not working, the pain was less but that he had difficulty bending, lifting, and performing physical labor around the house. The Veteran's range of motion was as follows: flexion limited to 40 degrees; extension limited to 0 degrees; side bend right limited to 15 degrees; side bend left limited to 10 degrees; right rotation limited to 10 degrees; and, left rotation limited to 15 degrees. The Veteran subjectively complained of pain in all ranges of motion; however, no objective signs of pain were noted. Additionally, no atrophy of the lumbosacral spine was noted and no additional limitation of joint function due to pain, fatigue, or lack of endurance was noted after repetitive motion. The examiner described the Veteran's gait as slow, antalgic, and steady. The Veteran was noted to be able to walk 150 feet without any assistance. As discussed above, in November 2014, the Board denied the Veteran's claim of entitlement to an increased rating in excess of 20 percent for the service connected status post lumbar surgery with resultant lumbar spine fracture. The Veteran was denied an increased rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237, because there was no evidence of forward flexion of the Veteran's lumbar spine being limited to 30 degrees or less, nor was there been favorable ankylosis of the entire thoracolumbar spine. The Veteran subsequently appealed that decision to the Court and a JMR was issued. The JMR opined that "note (5) of the General Rating Formula for the spine under 38 C.F.R. § 4.71a indicates that the definition of favorable ankylosis includes the situation of the thoracolumbar spine being fixed in extension. Here, Appellant has a spine extension of 0." Because the Veteran was noted to have "associated neurological impairment and bladder problems," the JMR indicated that the Board did not adequately discuss the presence or non-presence of ankylosis. The Board notes that a finding of zero degrees of extension on examination does not necessarily lead to a conclusion that the spine is "fixed" in that position, particularly if motion is possible in other planes such as forward flexion, etc. Since the Board's November 2014 decision, the Veteran submitted a report from Dr. M.M.M. dated in November 2015. Dr. M.M.M. indicated that the Veteran's flexion is limited to 10 degrees. The report is not accompanied by an examination report or any rationale. In February 2016, the Board again remanded this matter to ascertain the current level of the Veteran's back disability. The remand specifically requested that the examiner address whether the Veteran had "ankylosis of the spine or any impairment that is comparable to ankylosis." Pursuant to the Board's February 2016 remand, the Veteran underwent a VA examination in January 2017. The examiner checked a box indicating that the Veteran had no ankylosis of the spine. Flexion was to 25 degrees and extension was to zero. However, the January 2017 examiner did not address the Board's question as to whether the Veteran had impairment comparable to ankylosis. Therefore, the Board finds that a remand is necessary to obtain a medical opinion, or examination if necessary, to determine whether the Veteran's back disability warrants a higher rating, specifically under Note (5) within 38 C.F.R. § 4.71a, Diagnostic Code 5242. Additionally, the Court has held that a claim for a total rating based on unemployability due to service-connected disabilities (TDIU), either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has asserted that he is totally unemployable as the result of his service connected disabilities. Accordingly, the Board concludes that a claim for TDIU has been raised. As the resolution of the claim for a rating in excess of 20 percent for a back disability prior to November 9, 2015 might be determinative of the Veteran's claim for a rating in excess of 40 percent for his back disability beginning November 9, 2015 as well as his TDIU claim, the issues are inextricably intertwined, and both issues must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 2. Once the above development has been completed, schedule the Veteran for an examination. The examiner is requested to provide an opinion as to whether the Veteran has impairment of the spine that is comparable to ankylosis of the entire thoracolumbar spine. If so, the examiner should comment as to whether it is comparable favorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire thoracolumbar spine. If the examiner finds that the Veteran has impairment comparable to ankylosis, the examiner is asked to opine whether or not at any time did it result in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the evidence of record. 4. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. 5. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs