Citation Nr: 18153972 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-65 903 DATE: November 28, 2018 ORDER Entitlement to a compensable rating for loss of teeth numbers 7, 8, 9, 10, 11, 22, 23, 24, and 25 due to trauma is denied. FINDING OF FACT The Veteran’s loss of masticatory surface can be restored by suitable prosthesis. CONCLUSION OF LAW The criteria for a compensable rating for loss of teeth have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.150, Diagnostic Code (DC) 9913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to December 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a timely Substantive Appeal, VA Form 9, in December 2017 and requested a Board hearing. In April 2018, his representative submitted correspondence indicating that he wished to withdraw his hearing request. As such, there are no pending hearing requests. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations 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. Loss of Teeth Due to Trauma The Veteran seeks an increased rating for loss of teeth numbers 7, 8, 9, 10, 11, 22, 23, 24, and 25 due to trauma. Specifically, the Veteran asserts that his loss of teeth adversely affects his ability to chew, properly eat and digest food. The Veteran received a VA examination for his dental condition in May 2016. The examiner noted that an April 1969 operation report clearly states that the loss of teeth as well as fracture of the mandible were directly the cause of trauma, resulting from a rim on a forklift hitting the Veteran in the mouth. This required surgical intervention to reduce the fracture, and teeth numbers 7, 8, 9, 10, 11, 22, 23, 24, and 25 were removed due to trauma. The examiner found, however, that the masticatory surfaces could be restored by suitable prosthesis. The Veteran did not lose any part of the mandible or mandibular ramus, either condyle of the mandible, or either coronoid process of the mandible. The examiner reviewed the history and noted a well healed fracture of the mandible. As an initial matter, the Board notes the schedule of ratings for dental and oral conditions, 38 C.F.R. § 4.150, was amended during the pendency of this appeal. 82 Fed. Reg. 36,080 (Aug. 3, 2017). However, the amendments did not become effective until September 10, 2017, and no relevant evidence has been received since that date. Thus, the new diagnostic criteria do not apply in the Veteran’s case. However, the Board notes a thorough review of the revised entries, including to the applicable DC 9913, shows that if even if the amended criteria were applied, they would not result in a different outcome in this case. Under the pre-September 10, 2017 version of DC 9913, where the lost masticatory surface cannot be restored by a “suitable prosthesis,” a maximum 40 percent disability rating is warranted for the loss of all teeth, a 30 percent rating is warranted for the loss of all upper or lower teeth, a 20 percent rating is warranted for the loss of all upper and lower posterior or anterior teeth, and a 10 percent rating is warranted for the loss of all upper anterior teeth, all lower anterior teeth, or all upper and lower teeth on one side. Where the loss of masticatory surface can be restored by suitable prosthesis, a noncompensable rating is warranted. 38 C.F.R. § 4.150. Applying the criteria of DC 9913, the Board finds that the assigned noncompensable rating for the loss of the Veteran’s teeth most nearly approximates the Veteran’s disability picture. The May 2016 VA examiner found that the Veteran’s teeth could be replaced with a suitable prosthesis and there is no evidence to the contrary. A higher rating is not warranted under Diagnostic Code 9913 as higher ratings are available only if the lost masticatory surface cannot be restored by a suitable prosthesis. There is no evidence of record showing that the Veteran’s lost masticatory surface cannot be restored by a suitable prosthesis, and therefore a higher rating is not called for. 38 C.F.R. § 4.150, DC 9913. The Board has also considered whether a higher rating is warranted under any other potentially applicable diagnostic code related to dental or oral conditions. However, the Veteran does not have loss of the mandible or part of the mandible, or a loss of the ramus involving loss of bilateral temporomandibular articulation, or a loss of more than half of the maxilla, loss of 25 to 50 percent of the maxilla such that it is not replaceable by prosthesis, loss of the condyloid process, loss of the coronoid process or loss of the hard palate as documented in the VA examination reports and treatment records. Moreover, the Veteran’s prior mandible facture was found to be well-healed by the May 2016 VA examiner. Therefore, a higher or separate rating under Diagnostic Codes 9901 through 9916 are not warranted. The Board notes the contention of the Veteran’s representative that he experienced facial scarring as a result of his in-service dental trauma and that this facial scarring was not properly considered in adjudicating the instant appeal in a November 2018 Informal Hearing Presentation. However, the Board notes that the Veteran is currently in receipt of separate rating for residuals of a laceration to the upper and lower lip and that this issue is not on appeal. This argument is therefore without merit. Further, the Board notes the Veteran’s representative has argued that the Veteran had limitations to his diet, that eating was more difficult and that he slurred his speech as a result of his loss of teeth in a November 2018 Informal Hearing Presentation. The Veteran has also asserted that his tooth loss was adversely affected his ability to properly chew, eat and digest his food. However, the diagnostic criteria for loss of teeth expressly contemplate effects due to the loss of masticatory surface, including diet limitations, eating difficulties and speech difficulties. The Board also finds that the rating criteria reasonably describe the Veteran’s disability level and symptomatology pertaining to his service-connected tooth loss, which is manifested by teeth could be replaced with a suitable prosthesis. Thus, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Accordingly, the Board finds that the evidence is against the Veteran’s claim for a compensable rating for his service-connected for his loss of teeth numbers 7, 8, 9, 10, 11, 22, 23, 24, and 25 due to trauma. The benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a compensable rating is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel