Citation Nr: 1801463 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-17 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable rating for loss of teeth. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. The Veteran initially requested a Travel Board hearing, but withdrew his request in July 2012. In a July 2017 decision, the Board denied the Veteran's increased rating claim for erectile dysfunction, and remanded the issue on appeal for further development. After further development, this matter is now ready for adjudication. FINDING OF FACT The evidence is at least in equipoise that the Veteran lost all of his teeth and/or use thereof, due to the loss of substance of body of maxilla from his service-connected residuals of tonsil cancer, and the masticatory surface cannot be restored by suitable prosthesis. CONCLUSION OF LAW The criteria for a rating of 40 percent, but no more, for loss of teeth have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.150, Diagnostic Code 9913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Ratings The Veteran is seeking an increased rating for his loss of teeth caused by his residuals of radiation treatments for his service-connected tonsil cancer. 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. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 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. 38 C.F.R. § 4.7 (2017). When 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 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the period on appeal, the Veteran's loss of teeth due to his service-connected residuals of tonsil cancer has been assigned a noncompensable rating under 38 C.F.R. § 4.150, DC 9913. In order to warrant a compensable rating under DC 9913, the evidence must demonstrate a loss of masticatory surface that cannot be restored by a suitable prosthesis, and: * Loss of all upper anterior or lower anterior teeth, or loss of all upper and lower teeth on one side (10 percent); * Loss of all upper and lower posterior or upper and lower anterior teeth (20 percent); * Loss of all upper teeth or all lower teeth (30 percent); * Loss of all teeth (40 percent). 38 C.F.R. § 4.150. Here, based on the evidence of record, the evidence is at least in equipoise that the maximum rating of 40 percent is warranted for the entire period on appeal. Specifically, the Veteran's private treatment records, including from June 2011, indicate that the Veteran had all of his teeth pulled due to osteoradionecrosis - which was caused by radiation treatments for his service-connected tonsil cancer. Further, the Board notes that in a May 2015 VA examination, the examiner opined that the Veteran had numerous teeth pulled prior to his radiation treatments to prevent osteoradionecrosis, and that he subsequently lost all of his teeth thereafter. Moreover, he reported that the Veteran has anatomical loss or bony injury to his teeth other than due to the loss of the alveolar process as a result of periodontal disease. Additionally, he indicated that the Veteran's dentures are "ill-fitting and non-functional" due to maxillary bone loss from his radiation therapy. Similarly, in his most recent September 2016 VA examination, the examiner opined that the Veteran's teeth were extracted because of his bone loss and radiation treatments. The Board acknowledges the negative evidence, including the March 2011 VA examination which reflects that the Veteran still had some teeth, but concludes that the Veteran's level of functional impairment most closely approximates the "loss of all teeth" level of impairment contemplated by DC 9913. Specifically, the Veteran's private medical records, including from October 2010, reflect that prior to losing all of his teeth, the Veteran's teeth were "all carious" and decaying as a result of his radiation treatments, which caused significant pain and masticating impairment. Therefore, the Board finds that the maximum 40 percent rating, but no more, for the entire period on appeal is warranted for the Veteran's loss of teeth. Additionally, the Board notes that this is both the maximum applicable rating, and that the Veteran has specifically requested a rating of 40 percent. As such, the Board will consider this to be a full grant of the benefits sought on appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). As a final matter, the Board notes that the Veteran's primary argument is that he is entitled to dental treatment. Having determined that a 40 percent rating is warranted, he now meets the requirements for VA dental treatment, and should also be afforded this benefit. See 38 C.F.R. § 17.161 (2017). VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, to the extent it is being adjudicated, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER A rating of 40 percent, but no more, for loss of teeth is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs