Citation Nr: 21074913 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-47 542 DATE: December 16, 2021 ORDER Entitlement to a compensable rating for loss of teeth is denied. Entitlement to an increased rating to 20 percent, and no higher, for mandible fracture residuals, malunion, painful motion, is granted. Entitlement to an increased rating to 30 percent, and no higher, for facial fracture residuals, trigeminal nerve paralysis, is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's loss of masticatory surface can be restored by a suitable prosthesis. 2. For the entire appeal period, the Veteran's mandible fracture residuals of painful jaw motion and malunion more nearly approximate symptoms that are severe in nature. 3. For the entire appeal period, the Veteran's cranial fracture residuals manifested in severe incomplete trigeminal nerve paralysis. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for loss of teeth have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.150, Diagnostic Code (DC) 9913. 2. The criteria to establish a 20 percent rating, and no higher, for mandible fracture residuals, painful motion and malunion, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.150, DC 9904. 3. The criteria to establish a rating of 30 percent, and no higher, for residuals of facial fractures with severe incomplete paralysis trigeminal nerve have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.2, 4.6, 4.7, 4.59, 4.150, DC 8205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to July 1993. He received the Kuwait Liberation Medal-Saudi Arabia, Southeast Asia Service Medal with two Bronze Stars, Parachute Badge, M16 Expert Badge, National Defense Service Medal, Army Achievement Medal, among other awards. See DD 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in August 2021; a transcript is of record. During the hearing, the Veteran testified about the worsening of other service-connected disabilities related to traumatic injuries to his head and face, namely bilateral hearing loss, esotropia and hyperopia in the right eye, and concussion residuals with migraines. See generally, August 2021 Board Hearing Transcript. The Board acknowledges his statements and is aware he is competent to report the worsening of symptoms. However, the Board notes that these increased ratings issues are not currently on appeal, and therefore, are not before the Board. The Veteran can file a formal claim for an increased rating for these issues with the Agency of Original Jurisdiction. The Board will review the perfected claims of increased ratings for mandible fracture residuals and for facial fracture residuals. Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Increased rating for mandible fracture residuals The Veteran contends that his service-connected mandible fracture with loss of teeth is more disabling than his noncompensable rating. A December 2014 rating decision granted service connection at a noncompensable rating effective July 5, 2014 under DC 9913. During the pendency of the Veteran's appeal, the rating schedule for dental and oral conditions was amended, effective September 10, 2017. See 82 Fed. Reg. 36083 (Aug. 3, 2017) (codified at 38 C.F.R. § 4.150). No substantive changes were made to the requirements of DC 9913 for loss of teeth. An evaluation for loss of teeth under DC 9913 is based on whether the masticatory surface can be restored by a suitable prosthesis. Where the lost masticatory surface cannot be restored by a suitable prosthesis, a 40 percent rating is warranted for the loss of all teeth; a 30 percent rating for the loss of all upper or lower teeth; a 20 percent rating for the loss of all upper and lower posterior or anterior teeth; and a 10 percent rating for the loss of all upper anterior teeth, all lower anterior teeth, or all upper and lower teeth on one side. See 38 C.F.R. § 4.150, DC 9913. Where a loss of masticatory surface can be restored by suitable prosthesis, a noncompensable rating is warranted. See id. The Board considered the Veteran's statements regarding his ill-fitting prosthesis. The Veteran testified that due to irregularities in his facial bones, jaws, and mouth, and numerous reconstruction surgeries, including plates, wires and screws, his artificial teeth do not fit properly and have caused ulcers and infections in his mouth. He applied warm compresses and used topical anesthetics to alleviate pain, with no real relief. The Veteran stated all the teeth on one side of his mouth were "busted off at the gumline" in the accident. After that, he said that his remaining teeth fell out because they were loose due to the impact from the accident. The Veteran stated that he was not able to obtain dental implants because of the metal plates in the roof of his mouth. The record indicates that the Veteran lost all his teeth except for two roots due to injuries suffered in his service-connected head trauma and concussion. The record indicates he has had his teeth replaced with dentures. These dentures, the Veteran contends, do not work well due to the misalignment of his jaw and mouth. The Veteran was granted a VA examination in November 2014 in which it was noted that the Veteran had lost the following teeth: 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, and 32. The examiner noted that the Veteran has retained only the roots of tooth number 2, and 30. The examiner noted that the Veteran has had a complete dental restoration on the upper and lower teeth. The Veteran submitted a letter from his treating dentist, Dr. S.B., indicating that because of the Veteran's bilateral mandible subcondylar fractures, he has a collapsed posterior-vertical dimension. As result, his prosthetic is very thick in the anterior and the patient is unable to retain it properly. However, Dr. S.B. also indicated that placing two mandibular implants would allow the Veteran to retain and maintain a mandibular prosthesis. The Board finds that the preponderance of the record does not indicate that he is entitled to a compensable rating for his mandible fractures with loss of teeth under DC 9913 because his teeth could be replaced by a suitable prosthesis. Although his testimony of lost teeth is consistent with evaluation under DC 9913, a misaligned or open bite warrants evaluation under DCs for malunion and nonunion of maxilla or mandible. The Board considered the DCs for malunion and nonunion of maxilla and mandible based on the Veteran's assertions of ill-fitting dentures because his mouth and jaw is so shifted or maligned. Evaluation is warranted under these DCs because the evidence of record, to include a VA Examiner's opinion, as well as treating radiologist, show evidence of a malunion or nonunion of maxilla or mandible. See December 2014 VA Examination, pg. 2 (concluding right-sided paresthesia is a likely indicator of an open right-sided sinus; noting a Class III malocclusion). Painful jaw motion, malunion As to whether the Veteran experienced functional loss from jaw pain and malunion the Veteran's symptoms are considered under § 4.59 and DC 9904. The Veteran's jaw is painful, and although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Id. at 38. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. A functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Revised Criteria Effective September 10, 2017, regulations regarding DCs 9904 was revised. See 82 Fed. Reg. 36080, 36,083 (August 3, 2017). Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 U.S.C. § 5110 (g); VAOGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under DC 9904, prior to September 10, 2017, a noncompensable rating is warranted for slight displacement of the mandible; a rating of 10 percent for moderate displacement; and a rating of 20 percent for severe displacement. A Note to Diagnostic Code 9904 stated that the rating is dependent upon degree of motion and relative loss of masticatory function. After September 10, 2017, a noncompensable rating is warranted for displacement, not causing anterior or posterior open bite. A 10 percent rating is warranted for displacement, causing moderate anterior or posterior open bite. A 20 percent rating is warranted for displacement, causing severe anterior or posterior open bite. Application The December 2014 VA examination noted the Veteran's report of jaw pain when chewing and complaints of popping, clicking. A treatment record notes that his left mandible is severely displaced, and malocclusion discussed. See August 2014 Computerized Tomography (CT) Scan Report. The Veteran testified that he has jaw pain when he bites into something, that pain shoots right up on one side. Such symptoms are considered under DC 9904 for maxillary and mandibular conditions. CT results show malunion of his mandible through the tip of the coronoid process. See August 2014 CT Scan report (noting deformity of the right mandible ramus consistent with prior trauma; a chronic non-healed fracture through the coronoid process of the mandible). Functional impairments include difficulty chewing foods, difficulty opening his mouth, and pain during his sleep causing insomnia. There is further evidence of malunion of the mandible. The December 2014 VA examination noted a Class III malocclusion. Class III fractures indicate complete detachment of the midface from the skull. See Fractures of the Mandible and Midface, Merck Manual Professional Version, found at https://www.merckmanuals.com/professional/injuries-poisoning/facial-trauma/fractures-of-the-mandible-and-midface. Under the new Diagnostic Code 9904, to warrant a compensable rating, the Veteran's condition must show at least a moderate level of displacement of the mandible. Under the old version, the Board is allowed to consider the degree of motion and loss of masticatory function. Thus, the Board finds that the old version is more beneficial to the Veteran as he has a loss of masticatory function. The Board finds that the evidence more closely approximates a 20 percent rating for severe pain, difficulty chewing, malunion that negatively affects his masticatory function to severe degree. Although radiographic evidence of malunion was not confirmed until August 2014, the Board notes that lay statements of symptoms of malocclusion were present at the date of filing his increased rating claim. The Board finds that his lay statements of pain, misalignment, difficulty in chewing any foods along with evidence of malocclusion and malunion, negatively affects his masticatory function to a moderate degree. Therefore, a 20 percent rating, and no higher, is warranted for his mandibular condition for the entire appeal period. 2. Increased rating for facial fractures residuals, cranial nerve paralysis The Veteran contends that the residuals of his facial fractures are more disabling than his current 10 percent rating. By way of history, a March 1995 rating decision granted service connection for a mandibular condition (facial fractures residuals) under DC 8205, pertaining to the paralysis of the fifth cranial nerve, resulting in sensory manifestation or motor loss at a 10 percent rating effective July 1, 1993. In July 2014, the Veteran filed a claim for an increased rating. Under DC 8205, a 10 percent rating is warranted for moderate incomplete paralysis of the fifth cranial nerve. A 30 percent rating is warranted for severe incomplete paralysis of the fifth cranial nerve. A 50 percent rating is warranted for complete paralysis of the fifth cranial nerve. The VA Schedule for Rating Disabilities does not define the words "mild," "moderate," and "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the U.S. Court of Appeals for Veterans Claims noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms." One possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "mild," as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." A December 2014 VA examination noted the Veteran's accident caused multiple skull fractures, mandible fractures requiring extensive reconstruction resulting in significant damage to the anterior jaws and right sided cranial nerves. The examiner noted that the Veteran has paresthesias on the right side of his face. The Veteran complained of difficulty chewing due to the paralysis of the fifth cranial nerve. See August 2021 Hearing Transcript, pg. 5 (describing that he has no feeling on the whole right side of his face). Because the objective medical evidence indicates that the Veteran has been found to have paralysis of the trigeminal nerve that affects his chewing ability as well numbness of the right side of his face and mouth. This corroborates his lay statements regarding symptoms. The Board finds that based in the evidence, lay statements, VA examination and radiographic reports his incomplete paralysis more closely approximates one that is severe in nature. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that his disability more closely reflects a 30 percent rating, and no higher. However, the Veteran's trigeminal nerve paralysis is not shown to be complete paralysis to warrant the higher, 50 percent rating. Complete paralysis is not supported by the medical or lay evidence of record. Therefore, a 50 percent rating is not warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, Associate 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.