Citation Nr: 21061964 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-02 921 DATE: October 6, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right mandible fracture is denied. Entitlement to service connection for missing teeth is denied. REMANDED Entitlement to service connection for a nerve disability, to include as secondary to a right mandible fracture, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right mandible fracture has been manifested by painful motion and clicking of the jaw. 2. The Veteran's missing teeth are not a disability for which service-connected compensation is payable. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a right mandible fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905. 2. The criteria for service connection for missing teeth have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1996 to July 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in May 2019. With respect to the issues decided herein, the RO scheduled be Veteran for examinations in November 2019 and March 2020, but the Veteran stated that he would not attend any further dental examinations. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Veterans Claims Assistance Act of 2000 (VCAA) In accordance with the May 2019 Board remand directives, the Veteran was scheduled for a VA examination to determine the current severity of his right mandible fracture and the nature and etiology of his missing teeth. The RO scheduled the Veteran for a dental examination in November 2019, which the Veteran cancelled. The Veteran was scheduled for another dental examination in March 2020, but the Veteran again called and cancelled the examination. The Veteran stated that he has a phobia concerning dental examinations and procedures, and that he did not wish to have the disability reviewed further. VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claims. In this case the examination was necessary in order to determine whether the Veteran's right mandible fracture had worsened in order to ensure that the disability could accurately be rated. 38 C.F.R. § 3.655(a). Further, the Veteran clearly indicated that he would not appear for dental examinations due to his fear of dental procedures. Although the Veteran's phobia of dental examinations could conceivably constitute good cause for failing to appear for the examinations, it is not possible to determine the severity of the Veteran's right mandible fracture or the nature and etiology of the claimed missing teeth without a dental examination being conducted. As such, the Board finds that a remand for another examination is not warranted in this case. As the increased rating claim and service connection claim on appeal stem from the Veteran's original claim for compensation, the Board will decide the appeals based on the current evidence of record. 38 C.F.R. §§ 3.160(b), (f), 3.655(b). Neither the Veteran, his representative, nor the record has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. 1. Entitlement to an increased rating for a right mandible fracture. The Veteran's right mandible fracture is rated under Diagnostic Code 9905. Under Diagnostic Code 9905, a 10 percent rating is warranted for lateral excursion range of motion from 0 to 4 millimeters (mm.). 38 C.F.R. § 4.150, Diagnostic Code 9905. A 10 percent rating is warranted for interincisal range limited to 30 to 34 mm. of maximum unassisted vertical opening without dietary restriction to mechanically altered foods. Id. A 20 percent rating is warranted for the same degree of limitation with dietary restriction to soft and semi-solid foods. Id. A 30 percent rating is warranted for the same degree of limitation with dietary restriction to full liquid and pureed foods. Id. A 20 percent rating is warranted for interincisal range limited to 21 to 29 mm. of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Id. A 30 percent rating is warranted for the same degree of limitation with dietary restriction to soft and semi-solid foods. Id. A 40 percent rating is warranted for the same degree of limitation with dietary restriction to full liquid and pureed foods. Id. A 30 percent rating is warranted for interincisal range limited to 11 to 20 mm. of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Id. A 40 percent rating is warranted for the same degree of limitation with dietary restriction to all mechanically altered foods. Id. Finally, a 40 percent rating is warranted for interincisal range limited to 0 to 10 mm. of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Id. A 50 percent rating is warranted for the same degree of limitation with dietary restriction to all mechanically altered foods. Id. Ratings for limited interincisal movement are not to be combined with ratings for limited lateral excursion. Id., Note 1. For VA compensation purposes, the normal maximum unassisted range of cervical jaw opening is from 35 to 50 mm. Id., Note 2. Mechanically altered foods are defined as altered by blending, chopping, grinding, or mashing so that they are easy to chew and swallow. Id., Note 3. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. Id. To warranted elevation based on mechanically altered foods, the use of texture modified diets must be recorded or verified by a physician. Id. During the period on appeal, the Veteran has reported that he experiences pain in his jaw, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no evidence the Veteran's statements are not credible, and therefore they are entitled to probative weight. The Veteran was provided with dental examinations in October 2013, May 2014, and April 2015. During the October 2013 examination, the Veteran reported pain in the jaw intermittently, as well as clicking of the jaw. The examiner noted some tenderness with palpation of the titanium plate at the site of the fracture. However, no range of motion measurements were provided. During the May 2014 examination, the Veteran reported experiencing pain in his jaw, but denied flare-ups of the disability. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). The examiner noted lateral excursion greater than 4 mm. and inter-incisal distance greater than 40 mm., with no evidence of pain on motion. There was no further loss of motion after repetitive testing and that there was no additional functional loss or functional impairment of the temporomandibular joint. Pain was present on palpation on the right. In the April 2015 examination report the examiner noted the Veteran reported pain and clicking. The examiner noted the initial inter-incisal distance was from 39 mm. to 40 mm., but that after repat testing the Veteran had an inter-incisal distance of 40 mm. The Veteran had lateral excursion to the left and right of 12 mm., which remained the same after repetitive testing. The examiner noted pain and clicking on opening of the mouth. X-ray imaging did not reflect any malunion or nonunion of the fracture. In November 2015 clarification was obtained as to the effect of repeated use over time, with the examiner stating that there was an increase in symptoms, but that inter-incisal and lateral excursion measurements remained the same. There is no evidence that the above examiners were either not competent or credible, and each assessment was based on the Veteran's reports of his symptoms and each examiner's objective examinations of the mandible. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records throughout the period on appeal reflect reports of pain in the jaw and mandible. However, none of the records indicate that the Veteran had inter-incisal range of less than 29 mm., or that the Veteran's disability resulted in the need for an altered diet of any kind. Based on the foregoing, an increased rating in excess of 10 percent is not warranted during the period on appeal. The current 10 percent rating contemplates pain in the jaw on motion. However, none of the medical evidence indicates that the Veteran has interincisal range limited to less than 29 mm., or that the Veteran has an altered diet of any kind. Indeed, all of the VA examination reports reflect full or nearly full inter-incisal range, and none of the dental treatment records associated with the file reflect any limitation of motion of the jaw. As such, the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent is warranted in this case. 38 C.F.R. § 4.150, Diagnostic Code 9905. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). The preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's service-connected right mandible fracture. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 492 F.3d 1372. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). The dental disabilities for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Disability compensation and VA outpatient dental treatment may be provided only for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth 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, 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. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are to be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 C.F.R. §§ 3.381, 17.161. For the purposes of this appeal, the Board will address only the question of entitlement to service connection for the purposes of disability compensation, which was the issue previously remanded by the Board. 2. Entitlement to service connection for missing teeth. In this case, there is no competent lay, medical or dental evidence of loss of teeth due to loss of substance of the body of the maxilla or mandible due to bone loss or any other condition on which service connection could be allowed, nor is there any evidence that the Veteran's tooth is not treatable or replaceable. The October 2013, May 2014, and April 2015 VA dental examinations do not reflect that the Veteran had any loss of bone or substance as a result of the in-service mandible fracture. Further, the Veteran's post-service dental treatment records do not note any loss of bone or substance, despite numerous x-rays and examinations. While missing teeth have been noted, the missing teeth were not noted to be untreatable or due to the loss of substance of the mandible. While the fact that the Veteran experienced in-service trauma to the mandible is not in dispute, there is no evidence that such trauma resulted in loss of bone or substance, as is required in order for service connection for compensation purposes to be granted for a dental disability. Indeed, the Veteran himself has only stated that he sustained a broken tooth in service, not that there was any disability affecting the maxilla or mandible. The Board notes that in conjunction with his claim for benefits the AOJ attempted to obtain an opinion concerning the etiology of his missing teeth which ultimately was never provided following the cancellations by the Veteran. Even assuming that an examination and opinion was necessary, the failure to provide one in this case constitutes harmless error as compensation cannot be awarded for the missing teeth as a matter of law. As there is no degree of assistance which would substantiate the claim, the failure to obtain an examination was harmless. 38 C.F.R. § 3.159(d). There is simply no competent evidence that the Veteran has any current dental disability for which compensation is payable. 38 C.F.R. § 4.150. Based on the foregoing, the Board concludes that there is no basis under the law for the award of service-connected VA disability compensation for a current dental disorder, as there is simply no evidence that the Veteran has a disorder falling under the categories of compensable dental conditions. Id. When, as here, the law is dispositive of the claim, it should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 42930 (1994). For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a facial nerve disability. In May 2019, the Board remanded the issue of service connection for a facial nerve disability, to include as secondary to the Veteran's right mandible fracture, for a VA examination and opinion to determine the nature of any nerve disability and whether any disability was caused or aggravated by the Veteran's right mandible fracture. The Veteran was scheduled for an examination in November 2019, but the examination was cancelled at the Veteran's request. Another dental examination was scheduled for March 2020. However, the Veteran contacted VA in February 2020, stating that due to a phobia concerning dental procedures he did not want to report of a dental examination and did not want the issue reviewed further. As a result, the dental examination was cancelled and an opinion was not obtained. With respect to original claims, a failure to appear for an examination without good cause may result in the issue being decided based on the evidence of record. 38 C.F.R. § 3.655. However, it must be established that the examination for which the Veteran failed to appear was in fact necessary. Turk, 21 Vet. App. at 56970. Here, it is not clear that a dental examination is necessary to determine the nature and etiology of the claimed facial nerve disability. While the Veteran has asserted that the disability is related to his right mandible fracture, based on the nature of the claimed disability it is possible that a neurologic, as opposed to dental, examination would be adequate to determine the nature and etiology of the claimed facial nerve disability. As such, the Board finds that a dental examination, per se, was not necessary with respect to the claimed disability, and that therefore a remand is necessary so that the Veteran have be scheduled for a neurologic examination to determine the nature of his claimed facial nerve disability. 2. Entitlement to service connection for a low back disability, left and right knee disabilities, left and right hip disabilities, and bilateral lower extremity radiculopathy. The Veteran was scheduled for examinations for the above disabilities in accordance with the May 2019 Board remand in November 2019, but the examinations were cancelled at the Veteran's request. The examinations were then rescheduled for March 2020. In February 2020, the Veteran contacted VA and stated that he did not wish to report for his scheduled dental examination, citing a fear of dental examinations and procedures. However, the Veteran specifically stated that he wished for his claims for his back, knees, and hips to continue to be reviewed. Subsequently, the scheduled March 2020 dental examination was cancelled. However, the scheduled March 2020 knee and back examinations were also cancelled, despite the fact that in February 2020 the Veteran only stated that he would not appear for the dental examination, and further specifically stated that he wished to continue his appeals concerning the back, knees, and hips. As the March 2020 examinations concerning the back and knees appear to have been cancelled in error, the Board finds that a remand is necessary so that the examinations may be rescheduled. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA neurologic examination to determine the nature and etiology of the Veteran's claimed facial nerve disability. The examiner should answer the following: a) Identify all facial nerve disabilities. b) For all disabilities so identified, is it at least as likely as not (a fifty percent probability or greater) that the facial nerve disability was caused by the service-connected right mandible fracture? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the facial nerve disability was aggravated (worsened) by the right mandible fracture? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed low back disability and bilateral lower extremity radiculopathy. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the low back disability is causally related to the Veteran's active service? b) Identify all neurologic abnormalities associated with the low back disability. c) For all neurologic abnormalities identified, is it at least as likely as not (a fifty percent probability or greater) that the neurologic disability was caused by the low back disability? d) If not, is it at least as likely as not (a fifty percent probability or greater) that the neurologic disability was aggravated (worsened) by the low back disability? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed hip disabilities. The examiner should answer the following: a) Identify all current hip disabilities. b) For all disabilities so identified, is it at least as likely as not (a fifty percent probability or greater) that the hip disability was caused by the low back disability? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the hip disability was aggravated (worsened) by the low back disability? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed knee disabilities. The examiner should answer the following: a) Did the Veteran's left or right knee disability clearly and unmistakably (obviously, manifestly or undebatably) pre-exist his period of service? In answering question (a), attention is invited to a June 1996 treatment record noting that the Veteran reported knee pain for the past six years (labeled "STR-Medical" pg. 18 uploaded 1/5/12) and a July 1996 record noting chronic knee pain that pre-existed service (labeled "STR-Medical" pgs. 9 to 10 uploaded 1/5/12). b) If yes, was the Veteran's left or right knee disability clearly and unmistakably NOT aggravated (i.e., permanently increased in severity) by his period of service? In answering question (b), attention is invited to treatment records showing numerous complaints of knee pain and a determination that the disabilities were not aggravated by service (labelled "Military Personnel Record" pgs. 59 to 60 uploaded 10/14/15). Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service. c) If the answer to (a) or (b) is no, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's left or right knee disability is related to his active service? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.