Citation Nr: 1802363 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-31 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a higher (compensable) initial disability rating for service-connected right mandible fracture with slight deformity residual. 2. Entitlement to a higher (compensable) initial disability rating for service-connected loss of the lower right teeth #29-32 due to trauma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in U.S. Marine Corps from January 1951 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. On the October 2016 VA Form 8 (Certification of Appeal), the issue of service connection for posttraumatic stress disorder (PTSD) was listed as an issue on appeal, in addition to the issues involving higher ratings for dental disabilities; however, the Board finds that the issue of service connection for PTSD is not on appeal and declines taking jurisdiction of the issue for reasons explained below. In Percy v. Shinseki, 23 Vet. App. 37 (2009), the U.S. Court of Appeals for Veterans Claims (Court or CAVC) held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus, VA may waive any question of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Unlike the claimant in Percy, in this Veteran's case, VA has not "consistently treated this matter as if it was part of the timely filed Substantive Appeal." Percy, 23 Vet. App. at 46. On the June 2016 VA Form 9, the Veteran specified that he was only appealing the issues involving dental disability and, even liberally construed, did not indicate in any way an intention also to appeal the issue of service connection for PTSD, and issue that had been included on the Statement of the Case (SOC) in addition to issues involving higher ratings for dental disabilities. Thereafter, the RO did not issue a Supplemental Statement of the Case or otherwise readjudicate the claim since the June 2016 SOC. Other than the October 2016 VA Form 8, there is no reference to a continued claim of entitlement to service connection for PTSD subsequent to the SOC, and VA did not take any action to treat the issue as being on appeal. 38 C.F.R. § 19.35 (2017) (noting that the certification of appeals is used for administrative purposes and is not binding on the Board). In contrast to Percy, where a Veterans Law Judge took hearing testimony on the issue, the Board in this case took no action to recognize the issue; to the contrary, the Board is now, at its first opportunity, explicitly declining jurisdiction. The representative in Percy specifically identified the issue that was not included on the VA Form 9 as one on appeal less than one month after filing the substantive appeal; however, in this case, neither the Veteran nor the representative has expressed any belief that the issue of service connection for PTSD is on appeal or indicated any intention to pursue an appeal of the issue. See December 2017 Appellant's Brief (including argument only pertaining to dental disability with no mention pertaining to the issue involving PTSD). Accordingly, the facts of this case are distinguished from Percy, such that the issue of entitlement to service connection for PTSD is not in appellate status, and is not before the Board. In this case, on the June 2016 VA Form 9, the Veteran indicated that he wanted VA dental treatment for the service-connected dental disabilities; therefore, the issue of service connection for a dental disability for treatment purposes has been raised by the record. See Mays v. Brown, 5 Vet. App. 302, 306 (1993) (a claim for service connection is also considered a claim for VA outpatient dental treatment). Because the issue dental disability for treatment purposes has not yet been adjudicated by the appropriate VA Medical Center (VAMC), the Board does not have jurisdiction over it, and it is REFERRED for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. Throughout the rating period from August 18, 2015, the right mandible disability has been manifested by recent x-ray showing prior right mandible fracture was insignificant with no anatomical loss or bony injury, and no residual symptoms related to the fracture other than a slight deformity at the right mandibular angle compatible with an old healed fracture. 2. Throughout the rating period from August 18, 2015, the tooth disability was manifested by the loss of Tooth # 29, Tooth #30, Tooth #31, and Tooth #32, which is a loss of some, but not all, lower anterior teeth on one side. CONCLUSIONS OF LAW 1. The criteria for an initial (compensable) disability rating for service-connected right mandible fracture with slight deformity residual are not met or approximated for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.150, Diagnostic Code (DC) 9904 (2017). 2. The criteria for an initial (compensable) disability rating for service-connected loss of the lower right teeth #29-32 due to trauma are not met or approximated for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.118, DC 9913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and 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). This notice should 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). The U.S. Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran is challenging the initial disability ratings assigned following the grant of service connection. The Court has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Furthermore, under 38 C.F.R. § 3.159(b)(3)(i), there is no duty to provide the Veteran with VCAA notice upon receipt of a Notice of Disagreement, such as in this case. For these reasons, the Board finds that no further notice, beyond that afforded in the context of the claim for service connection, is needed under the VCAA. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. The RO provided a VA dental examination in October 2015. The October 2015 VA examination report includes all relevant findings and medical opinions needed to evaluate fairly the appeal. The October 2015 VA examiner considered an accurate history of the claimed dental disabilities as provided through interview of the Veteran and review of the record and performed a thorough examination; therefore, the VA dental examiner had adequate facts and data regarding the history and condition of the dental disabilities when reporting the findings regarding current dental symptoms and resultant functional impairment. For these reasons, the Board finds that the October 2015 VA dental examination report is adequate for rating purposes, and there is no need for further examination. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. Disability Rating Legal Criteria Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Initial Rating Analysis for Right Mandible Fracture Residuals For the entire initial rating period from August 18, 2015, the service-connected right mandible disability is rated at 0 percent under the criteria at 38 C.F.R. § 4.150, DC 9904, for malunion of the mandible. The Veteran seeks a compensable rating on the basis that he has no feeling on the side of the face, which he reports causes difficulty while eating. Under DC 9904, a 0 percent rating is provided for malunion of the mandible with displacement not causing anterior or posterior open bite. A 10 percent rating is provided for malunion of the mandible with displacement causing moderate anterior or posterior open bite. A 20 percent rating is provided for malunion of the mandible with displacement causing severe anterior or posterior open bite. 38 C.F.R. § 4.150. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding of a higher rating the service-connected right mandible disability under DC 9904 for any period. Throughout the rating period from August 18, 2015, the right mandible disability has been manifested by recent x-ray showing prior right mandible fracture was insignificant with no anatomical loss or bony injury, and no residual symptoms related to the fracture other than a slight deformity at the right mandibular angle compatible with an old healed fracture. At the October 2015 VA examination, the VA examiner noted that recent x-ray showed that the prior right mandible fracture was insignificant with no anatomical loss or bony injury, and there were no residual symptoms related to the fracture other than a slight deformity at the right mandibular angle compatible with an old healed fracture. The October 2015 VA examiner added that the Veteran's difficulty with chewing is due to nerve damage. Treatment records relevant to the initial rating period include no contrary findings. The Veteran contends that he is entitled to a compensable rating for the right mandible disability on the basis that he has no feeling on one side of the mouth so that he has difficulty chewing. For the entire rating period, service connection was in effect for complete paralysis of the twelfth cranial nerve (dependent upon loss of motor function of the tongue), rated at 50 percent under DC 8212; damage to the tenth cranial nerve (dependent upon extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach, and heart), rated at 30 percent under DC 8210; and damage to the ninth cranial nerve (dependent upon relative loss of ordinary sensation in the mucous membrane of the pharynx, fauces, and tonsils), rated at 20 percent under DC 8209; thus, all the reported symptom of loss of feeling on the side of the mouth causing difficulty chewing are already contemplated and rated in the separate disability ratings (i.e., 50 percent rating under DC 8212, 30 percent rating under DC 8210, and 20 percent rating under DC 8209) for nerve damage, so may not again be the subject of a grant of service connection or separate rating of the same symptoms. 38 C.F.R. § 4.14 (2017). In consideration thereof, the Board finds that a compensable rating under DC 9904 is not warranted for any period. 38 C.F.R. §§ 4.3, 4.7. Initial Rating Analysis for Loss of Lower Right Teeth For the entire initial rating period from August 18, 2015, the service-connected tooth disability has been rated at 0 percent under the criteria at 38 C.F.R. § 4.150, DC 9913, for loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity. A 0 percent rating is provided when the loss of masticatory surface can be restored by suitable prosthesis. A 10 percent rating is provided when all upper and lower teeth on one side are missing, all lower anterior teeth are missing, or all upper anterior teeth are missing. A 20 percent rating is provided when all upper and lower anterior teeth missing or all upper and lower posterior teeth missing. A 30 percent rating is provided when there is a loss of all upper teeth or a loss of all lower teeth. A 40 percent rating is provided when there is a loss of all teeth. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the criteria for an initial compensable rating under DC 9913 are met or approximated for any period. The evidence shows that the following lower teeth are missing: Tooth # 29 through Tooth #32; thus, while some lower anterior teeth on one side are missing, not all lower anterior teeth on one side are missing because Tooth #28, Tooth #27, Tooth #26, and Tooth 25 are still present. For these reasons, an initial compensable rating under DC 9913 is not warranted for any period. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Referral Analysis The Board has further considered whether the initial rating appeals warrant referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. In this case, the Board finds that all the symptomatology and functional impairment caused by the service-connected right mandible disability and tooth disability are specifically contemplated by the schedular rating criteria, so no referral for extraschedular consideration is required. Throughout the rating period, the right mandible disability was manifested by recent x-ray showing prior right mandible fracture was insignificant with no anatomical loss or bony injury, and there were no residual symptoms related to the fracture other than a slight deformity at the right mandibular angle compatible with an old healed fracture. The schedular rating criteria under DC 9904 provide for a noncompensable rating for these symptoms and level of impairment involving the mandible. Also, for the entire rating period, the tooth disability was manifested by the loss of Tooth # 29, Tooth #30, Tooth #31, and Tooth #32. The schedular rating criteria under DC 9913 provide for a noncompensable rating for these symptoms and level of impairment involving the loss of teeth. Residual nerve damage involving the mouth is contemplated in separate ratings for complete paralysis of the twelfth cranial nerve (dependent upon loss of motor function of the tongue), damage to the tenth cranial nerve (dependent upon extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach, and heart), and damage to the ninth cranial nerve (dependent upon relative loss of ordinary sensation in the mucous membrane of the pharynx, fauces, and tonsils) (i.e., 50 percent rating under DC 8212, 30 percent rating under DC 8210, and 20 percent rating under DC 8209). There is no symptomatology and/or functional impairment that are not considered by the schedular rating criteria. The noncompensable (0 percent) schedular ratings fully contemplate all the symptoms and functional impairment related to the dental disabilities, such that recognition of these symptoms as part of an extraschedular rating is not warranted and, additionally, would also violate the rule against pyramiding. See 38 C.F.R. § 4.14. ORDER A higher (compensable) initial disability rating for service-connected right mandible fracture with slight deformity residual for the entire rating period is denied. A higher (compensable) initial disability rating for service-connected loss of the lower right teeth #29-32 due to trauma for the entire rating period is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs