Citation Nr: 21066357 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-52 229 DATE: October 29, 2021 ORDER Entitlement to an increased, compensable rating for service-connected fracture of the maxilla is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran's fracture of the maxilla is manifested by the loss of masticatory surface which is restorable by suitable prosthesis. 2. The Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for fracture of the maxilla have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.150, Diagnostic Code 9913. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to August 1967. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for posttraumatic stress disorder (PTSD) and chronic obstructive pulmonary disease (COPD). The RO also continued the noncompensable rating for a fracture of the maxilla. In December 2019, the Board remanded the matters for further evidentiary development, specifically to provide VA examination to determine the nature and etiology of an acquired psychiatric disorder and COPD, and to ascertain the current level of disability for service-connected fracture of the maxilla. As discussed below, the examination was conducted and is adequate to decide the claim. The agency of original jurisdiction thus complied with the Board's remand instructions in this regard. The Board also remanded a TDIU claim raised by the record as inextricably intertwined with Veteran's claim for an increased rating for his service-connected fracture of the maxilla. Although the Veteran's formal claim for a TDIU was denied in the November 2015 rating decision, the issue of entitlement to a TDIU that was inferred as part and parcel of the July 15, 2015 claim for an increased rating for fracture of the maxilla remains on appeal. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). While in remand status, in a January 2021 rating decision, the RO granted service connection for unspecified anxiety disorder and nightmare disorder (claimed as PTSD) and assigned a 30 percent rating, effective July 15, 2015. In a March 2021 rating decision, the RO granted service connection for COPD and assigned a 30 percent rating effective July 15, 2015. The grant of service connection for unspecified anxiety disorder and nightmare disorder and COPD constitutes a full award of the benefits sought on appeal with respect to those claims. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The record contains no indication that the Veteran initiated an appeal with the initial rating or effective date assigned for unspecified anxiety disorder and nightmare disorder and COPD. Thus, those matters are not in appellate status. Higher Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or staged ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 1. Fracture of the maxilla The Veteran's dental condition is currently rated as noncompensable under 38 C.F.R. § 4.150, Diagnostic Code 9913. A noncompensable rating applies where the loss of masticatory surface can be restored by suitable prosthesis. By contrast, compensable ratings apply where the lost masticatory surface cannot be restored by suitable prosthesis. 38 C.F.R. § 4.150, Diagnostic Code 9913. Where compensable ratings apply, Diagnostic Code 9913 compensates for loss of teeth. The diagnostic criteria for such an award require the loss of all teeth (40 percent rating), all upper teeth (30 percent rating), all lower teeth (30 percent rating), all upper and lower posterior teeth (20 percent rating), all upper and lower anterior teeth (20 percent rating), all upper anterior teeth (10 percent rating), all lower anterior teeth (10 percent rating), or all upper and lower teeth on one side (10 percent rating). 38 C.F.R. § 4.150, Diagnostic Code 9913. For the following reasons, a compensable rating for fracture of the maxilla is not warranted. An October 2015 VA examination reports shows that during service, the Veteran had an accident where a truck tire blew up and the rim hit him in the face, which fractured his upper jaw and caused several teeth to be lost. No bony structures of the maxilla were lost due to the accident. The teeth were replaced with partial dentures on the upper, and lower missing teeth were replaced with removable dentures by the VA. Later, the Veteran lost all his upper teeth due to decay and neglect. The VA provided a new upper and lower denture at that time. The examiner noted a diagnosis of loss of teeth. The Veteran exhibited no limitations of motion, stable bilateral occlusion, no pathology, and no residual effects related to the in-service accident. The Veteran had no loss of the maxilla, as it was a fracture which was treated and healed. He required no further treatment to correct trauma from the injury, and everything looked within normal limits. The examiner noted that the masticatory surfaces can be restored by suitable prosthesis. An August 2017 VA examination report shows diagnoses of loss of teeth and fracture of the maxilla, resolved. The Veteran exhibited no limitations of motion, stable bilateral occlusion, no pathology, and no residual effects related to the in-service accident. The Veteran had no loss of the maxilla, as it was a fracture which was treated and healed. He required no further treatment to correct trauma from the injury, and everything looked within normal limits. The examiner indicated that the masticatory surfaces can be restored by suitable prosthesis. A November 2020 VA examination report shows diagnoses of maxilla fracture and loss of teeth. The Veteran exhibited no loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity. Teeth loss was due to initial injury. The examiner indicated the masticatory surfaces can be restored by suitable prosthesis. Specifically, construction of a new mandibular partial denture. A November 2020 VA temporomandibular disorders examination report shows diagnoses of bilateral reciprocal clicks with no pain, malocclusion, insufficient overjet and overbite. The examiner noted that the Veteran's range of motion was within normal limits. Specifically, his interincisal range of motion was greater than 34 mm. The Veteran's right lateral excursion range of motion was greater than 4 mm. In this case, the October 2015, August 2017, and November 2020 VA examiners concluded that the masticatory surfaces can be restored by suitable prosthesis. Moreover, the record contains no competent evidence to the contrary. The Board has considered whether higher ratings could be assigned under an alternative diagnostic code, however, the Board finds that no other diagnostic codes are applicable. However, repeated examinations have shown no indication that the Veteran had lateral excursion of 0 to 4 mm, or 34 mm of maximum unassisted vertical opening without dietary restrictions to all mechanically altered food, or all upper and lower teeth on one side missing due to loss of substance or body of maxilla or mandible without loss of continuity. Thus, a rating under Diagnostic Code 9905 is not warranted. As the preponderance of evidence reflects the symptoms of the Veteran's fracture of the maxilla do not more nearly approximate the criteria for a compensable rating, the benefit of the doubt doctrine is not for application and a compensable rating for fracture of the maxilla is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. TDIU Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. § §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In this case, the Veteran is service connected for the following disabilities: scars, face, rated as 30 percent disabling; COPD, rated as 30 percent disabling; unspecified anxiety disorder and nightmare disorder, rated as 30 percent disabling; deformity, nasal septum, with deflected nasal septum due to trauma, rated as 10 percent disabling; recurrent right maxillary sinusitis, rated as 10 percent disabling; scar, facial, panful, rated as 10 percent disabling; otitis media, left ear, post-operative myringoplasty, rated as noncompensable; and fracture, maxilla, rated as noncompensable. The Veteran is in receipt of a combined 80 percent rating from July 15, 2015, and that is the date of the increased rating claim of which the issue of entitlement to a TDIU is part and parcel. Therefore, he meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Thus, the next question for consideration is whether his service-connected disabilities prevent him from securing and following substantially gainful employment. On July 15, 2015, the Veteran submitted a formal TDIU application, VA Form 21-8940a indicating that his hearing and dental disabilities prevents him from securing or following any substantially gainful employment. The Veteran reported that he worked as a clerk for the U.S. postal service and became too disabled to work in 2006. He indicated that he completed two years of college. The Veteran noted that he had not received education or training since becoming too disabled to work. An October 2015 VA dental examination report shows the examiner indicated the Veteran's fracture of the maxilla does not impact his ability to work. The examiner further noted the Veteran's dental condition would have no impact on his ability to perform physical or sedentary labor. An August 2017 and December 2020 VA dental examination reports shows the examiners indicated that the Veteran's fracture of the maxilla does not impact his ability to work. A July 2020 VA psychiatric examination report shows the Veteran reported that he worked with the postal service until he retired. The examiner indicated the Veteran's anxiety and chronic sleep impairment would likely impact his persistence and pace in a job setting. Also, the effects of chronic sleep deficits may impact his concentration and follow-through. The examiner further indicated that the Veteran's anxiety symptoms would likely impact his ability to tolerate the stress of day to day employment to a moderate degree. In a September 2020 VA examination report shows the examiner indicated the Veteran's COPD would impact his ability work. The examiner explained that the Veteran would have difficulty with walking, carrying, pushing, or other labor intensive exercises that may exacerbate his condition in certain work environment. The examiner further explained that there would be no limitations for sedentary work related to his COPD condition. A December 2020 VA examination report shows the examiner indicated the Veteran's scars would not impact his ability to work. The above reflects that the Veteran's service-connected unspecified anxiety disorder and nightmare disorder, and COPD disabilities have had a significant impact on his ability to work at a job for which he is qualified by his education and occupational history, to the extent that they would render him unable to secure or follow substantially gainful employment. Although no medical professional has expressed an opinion as to whether the Veteran's service-connected disabilities rendered him unemployable, the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Given the foregoing, the evidence is at least evenly balanced as to whether the Veteran's service-connected unspecified anxiety disorder and nightmare disorder, and COPD disabilities render him unable to secure and follow a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.