Citation Nr: 21006027 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-63 395 DATE: February 3, 2021 ORDER Entitlement to a compensable rating for osteitis, maxilla and mandible, bilateral, with loss of teeth and masticatory surface (hereafter “loss of teeth”) is denied. Entitlement to a noncompensable rating for osteitis, maxilla and mandible, bilateral, with less than one-half loss of mandible from August 21, 2013, to September 9, 2017, and for a 10 percent rating, but no higher, from September 10, 2017 (hereafter “loss of less than one-half of mandible”), is granted. FINDINGS OF FACT 1. For the entire period at issue in this appeal, the Veteran’s loss of teeth resulted in loss of masticatory surface that can be restored by suitable prosthesis. 2. From August 21, 2013, to September 9, 2017, the Veteran’s mandible did not result in loss of approximately one-half of mandible. 3. From September 10, 2017, the Veteran’s mandible resulted in loss of less than one-half of mandible not involving temporomandibular articulation and replaceable by prosthetics. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for loss of teeth have not been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.20, 4.31, 4.150, DC 9913. 2. The criteria for entitlement to a noncompensable rating for loss of less than one-half of mandible have been met from August 21, 2013, to September 9, 2017. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.20, 4.31, 4.150, DC 9902 (2013). 3. The criteria for a 10 percent rating, but no higher, for less than one-half loss of mandible have been met from September 10, 2017. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.20, 4.31, 4.150, DC 9902. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1969. This matter comes to the Board of Veterans’ Appeals (Board) from a May 2015 rating decision that, in pertinent part, continued to deny a compensable rating for a claim of loss of teeth. In December 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2020, the Board remanded for a new VA examination. A new examination was performed in March 2020, and this examination complied with the Board’s remand directives. The Board, therefore, finds substantial compliance with the February 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes (DC). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the veteran’s disability picture more nearly approximates the criteria for the higher evaluation. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability, and above all, coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran is currently service connected for osteitis, maxilla and mandible, bilateral, with loss of teeth and masticatory surface, and assessed a noncompensable rating under DC 9913, effective December 2, 1969. In September 1971, the Veteran underwent multiple extraction (all 31 teeth), maxillary and mandibular; and alveoplasty, maxillary and mandibular. In July 2014, the Veteran sought treatment from a private dentist for inadequate fitting of the upper denture. The Veteran had normal soft tissues and, while the upper denture had a slight rock, the lower denture was stable. The dentist diagnosed the Veteran with edentulous. On that same day, the private dentist completed a VA Form 21-0960D-1. The dentist diagnosed the Veteran with periodontal disease. The dentist stated the Veteran had no loss of mandible or maxilla due to anatomical loss or bone injury and had no malunion or nonunion of the maxilla. The dentist stated the Veteran was missing all upper and lower teeth, but opined that the Veteran’s masticatory surface can be restored with suitable prothesis in the form of dentures. The dentist opined that the Veteran’s dental disability did not affect his ability to work. On August 21, 2014, the Veteran filed a claim of increased evaluation for oral and dental condition. In May 2015, the VA examiner stated the Veteran had all his teeth removed in 1971 and was given complete dentures. The Veteran reported that the lower ridge had continued to lose bone since that time. The Veteran stated that he had used two additional sets of dentures and that his current dentures were 9 to 10 years old. The Veteran reported that the lower denture was severely irritating the tissue. The examiner diagnosed the Veteran with loss of any portion of mandible, periodontal disease, and dental caries. The examiner stated the Veteran’s diagnosis had changed and was a progression of past diagnosis. The examiner stated the Veteran had lost part of mandible or mandibular ramus, which the examiner described as severe atrophy of mandibular ridge due to early tooth loss. The examiner stated the Veteran had no malunion or nonunion of mandible or had no anatomical loss or bone injury of maxilla. The examiner stated the Veteran’s current lower denture is ill fitting and irritating the tissue. The examiner stated the current tissue irritation on the lower left lingual was from flange impingement. The examiner opined that the Veteran’s dental disability did not affect his ability to work. In September 2018, the Veteran sought treatment from his private dentist’s office for inadequate fitting of the upper denture. An internal and external oral examination was normal. The Veteran’s upper denture rocked with severe wear and tear on post teeth. The Veteran could not bite correctly, and there was an open bite on the front when biting on the post teeth. The dentist recommended replacement of both dentures. At the December 2019 hearing, the Veteran reported wearing dentures and stated that there were days when they were irritated and caused a little pain when he was trying to eat. The Veteran reported grinding his teeth when wearing his dentures and that this caused pain, aching, and redness on the bone and gums of the lower jaw. The Veteran reported that he had problems getting the upper and lower jaws to meet up properly and stated that this was due to there being very little bone in the mandible. The Veteran stated that the loss of mandible had stabilized. The Veteran stated that he was previously informed by his dentist that someday he would not be able to wear dentures, but that they have not said anything about it at the last three sessions. In December 2019, the Veteran sought treatment from his private dentist’s office for consultation to replace existing dentures. The dentist stated the Veteran had excellent maxilla ridge and very atrophic mandibular ridge. The dentist stated the Veteran’s current dentures had very worn occlusion and recommended replacement of both dentures. In March 2020, the VA examiner diagnosed the Veteran with periodontal disease, mandibular alveolar ridge loss/edentulous atrophy; and osteitis maxilla/mandible with loss of teeth and masticatory surface. The examiner stated the Veteran did not have not a complete loss of mandible or loss of one-half or more of mandible, but had loss of less than one-half of mandible not involving temporomandibular articulation and replaceable by graft or implants. The examiner stated the Veteran’s loss of masticatory surface can be restored with suitable prothesis in combination with possible graft or implants. The examiner stated the Veteran’s current dentures were ill fitting. The examiner opined that the Veteran’s dental disability did not affect his ability to work. In written pleadings and at the December 2019 hearing, the Veteran asserts that he is entitled to an increased evaluation for a dental disability. At the hearing, the Veteran’s representative asserted that the Veteran’s disability be reclassified as malunion or nonunion of the maxilla under DC 9916 due to an anterior and posterior open bite even when the Veteran got new plates. The representative also asserted extraschedular consideration under DC 9913 due to bruxism, deterioration, and malunion or nonunion of the jaw. Based on the various diagnoses provided by the Veteran’s private dentist and the VA examiners, the Board finds that the relevant DCs for this case are DC 9902 and 9913. Evaluation is warranted under DC 9902 because the evidence of record, to include the March 2020 VA examiner’s opinion, noted that there was partial loss of mandible. Because there was only partial loss of mandible, evaluation is not warranted under DC 9901 for complete loss of mandible. Evaluation is warranted under DC 9913 because the evidence of record showed that the Veteran had lost teeth. The Board has considered the DCs for malunion and nonunion of maxilla and mandible based on the Veteran’s representative’s assertions at the hearing. Evaluation is not warranted under any of these DCs because the evidence of record, to include the examinations and opinions of the private dentist and VA examiners, showed no malunion or nonunion of maxilla or mandible. To the extent that the representative asserts that rating by analogy is appropriate because the open bite caused by ill-fitting dentures is analogous to the open bite due to malunion or nonunion of maxilla or mandible, the Board finds that this assertion does not warrant consideration under any of the DCs for malunion and nonunion of maxilla or mandible. Rating by analogy is warranted only for an unlisted condition to a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomology is closely analogous. See 38 C.F.R. § 4.20. However, ill-fitting dentures is not a medical condition and, thus, cannot be rated by analogy to the DCs for malunion or nonunion of the maxilla or mandible. The representative’s assertion is more relevant to DC 9913 that expressly considers the use of prosthesis for loss of masticatory surface. The Board has also considered the Veteran’s lay statements. The Veteran’s testimony of lost teeth is consistent with evaluation under DC 9913 and having very little bone in mandible is consistent with evaluation under DC 9902 and not DC 9901. However, the Veteran’s testimony of an open bite does not warrant evaluation under any of the DCs for malunion and nonunion of maxilla or mandible for the reasons explained in the prior paragraph. Disability Rating for Loss of Teeth 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 suited 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 the loss of masticatory surface can be restored by suitable prosthesis, a noncompensable rating is warranted. See id. The Veteran is currently service connected for osteitis, maxilla and mandible, bilateral, with loss of teeth and masticatory surface, and assessed a noncompensable rating under DC 9913, effective December 2, 1969. In July 2014, the Veteran sought treatment from a private dentist for inadequate fitting of the upper denture. The Veteran had normal soft tissues and, while the upper denture had a slight rock, the lower denture was stable. On that same day, the private dentist completed a VA Form 21-0960D-1. The dentist stated the Veteran was missing all upper and lower teeth, but opined that the Veteran’s masticatory surface can be restored with suitable prothesis in the form of dentures. The dentist opined that the Veteran’s dental disability did not affect his ability to work. On August 21, 2014, the Veteran filed a claim of increased evaluation for oral and dental condition. In May 2015, the Veteran stated that his current dentures were 9 to 10 years old. The Veteran reported that the lower ridge had continued to lose bone since that time. The examiner stated the Veteran had lost part of mandible or mandibular ramus, which the examiner described as severe atrophy of mandibular ridge due to early tooth loss. The examiner opined that the Veteran’s dental disability did not affect his ability to work. In September 2018, the Veteran sought treatment from his private dentist’s office for inadequate fitting of the upper denture. An internal and external oral examination was normal. The Veteran’s upper denture rocked with severe wear and tear on post teeth. The Veteran could not bite correctly, and there was an open bite on the front when biting on the post teeth. The dentist recommended replacement of both dentures. At the December 2019 hearing, the Veteran reported wearing dentures and stated that there were days when they were irritated and caused a little pain when he was trying to eat. The Veteran reported grinding his teeth when wearing his dentures and that this caused pain, aching, and redness on the bone and gums of the lower jaw. The Veteran reported that he had problems getting the upper and lower jaws to meet up properly and stated that this was due to there being very little bone in the mandible. The Veteran stated that the loss of mandible had stabilized. The Veteran stated that he was previously informed by his dentist that someday he would not be able to wear dentures, but that they have not said anything about it at the last three sessions. In December 2019, the Veteran sought treatment from his private dentist’s office for consultation to replace existing dentures. The dentist stated the Veteran had excellent maxilla ridge and very atrophic mandibular ridge. The dentist stated the Veteran’s current dentures had very worn occlusion and recommended replacement of both dentures. In March 2020, the VA examiner stated the Veteran did not have not a complete loss of mandible or loss of one-half or more of mandible, but had loss of less than one-half of mandible not involving temporomandibular articulation and replaceable by graft or implants. The examiner stated the Veteran’s loss of masticatory surface can be restored with suitable prothesis in combination with possible graft or implants. The examiner stated the Veteran’s current dentures were ill fitting. The examiner opined that the Veteran’s dental disability did not affect his ability to work. In written pleadings and at the December 2019 hearing, the Veteran asserts that he is entitled to an increased evaluation for a dental disability. For purposes of DC 9913, the representative asserted extraschedular consideration due to bruxism, deterioration, and malunion or nonunion of the jaw. For purposes of the entire period at issue in this appeal, the Board finds that a compensable rating is not warranted for loss of teeth. The competent evidence of record, to include the opinion of the private dentist and the March 2020 VA examiner, showed that the Veteran’s masticatory surface can be restored with suitable prothesis in the form of dentures. This evidence is consistent with a noncompensable rating based on the requirements of DC 9913. See 38 C.F.R. § 4.150, DC 9913. A higher evaluation is not warranted because the competent evidence of record did not show that the Veteran’s masticatory surface cannot be restored with suitable prosthesis. See id. The Board has considered the Veteran’s testimony that he had problems getting the upper and lower jaws to meet up properly and stated that this was due to there being very little bone in the mandible. The Veteran’s representative also asserted malunion due to an anterior and posterior open bite even when the Veteran got new plates. The Board notes that the Veteran did not get new dentures during the period on appeal. To the extent that this testimony and assertion suggests that the Veteran’s masticatory surface cannot be restored with suitable prothesis, neither the Veteran nor his representative, as laypersons, have the specialized training to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the determination of whether the Veteran’s masticatory surface can be restored with suitable prosthesis is a matter not capable of lay observation, and requires medical expertise to determine. The Board finds the opinions of the private dentist and VA examiners to be significantly more probative than the Veteran’s lay testimony or the representative’s assertion. The Board has also considered the representative’s assertion for extraschedular consideration. Extraschedular consideration is not warranted when the Veteran’s symptoms can be ameliorated with treatment identified in the DC. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Here, DC 9913 expressly considers the use of prothesis, and the evidence of record, to include the opinions of the private dentist and VA examiners, showed that the Veteran’s symptoms are due to ill-fitting dentures and that the Veteran’s masticatory surface can be restored with suitable prosthesis. Moreover, extraschedular consideration is not warranted when there is no evidence of marked interference on employment or frequent hospitalization. See 38 C.F.R. § 3.321(b). Here, the evidence of record, to include the opinions of the private dentist and the VA examiners, showed that the Veteran’s dental disability did not result in marked interference on employment. Similarly, the Veteran provided no lay evidence of a marked interference on employment. Disability Rating for Loss of Less than One-Half of Mandible 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). Substantive changes were made to the requirements of DC 9902 for partial loss of mandible. Subject to the provisions in 38 U.S.C. § 5101, when a disability rating is increased pursuant to statute or regulation, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the statute or regulation. See 38 U.S.C. § 5110(g). Moreover, the regulation amending DC 9902 did not authorize an earlier effective date than the date the regulation was effective. See 82 Fed. Reg. 36083. Accordingly, the Board will evaluate the Veteran’s claim under the prior regulation prior to September 10, 2017, and apply the current regulation thereafter. Prior to September 10, 2017, a 50 percent rating under DC 9902 is warranted for loss of approximately one-half of mandible involving temporomandibular articulation and a 30 percent rating for loss not involving temporomandibular articulation. See 38 C.F.R. § 4.150, DC 9902 (2013). Effective September 10, 2017, for loss of mandible, including ramus, unilaterally and bilaterally, a disability is warranted as follows: a 70 percent rating for loss of one-half or more involving temporomandibular articulation and not replaceable by prosthesis and a 50 percent rating for loss of one-half or more involving temporomandibular articulation replaceable by prosthesis; a 40 percent rating for loss of one-half or more not involving temporomandibular articulation and not replaceable by prosthesis and a 30 percent rating for loss of one-half or more not involving temporomandibular articulation replaceable by prosthesis; a 70 percent rating for loss of less than one-half involving temporomandibular articulation and not replaceable by prosthesis and 50 percent rating for loss of less than one-half involving temporomandibular articulation replaceable by prosthesis; a 20 percent rating for loss of less than one-half not involving temporomandibular articulation and not replaceable by prosthesis and a 10 percent rating for loss of less than one-half not involving temporomandibular articulation replaceable by prosthesis. See 38 C.F.R. § 4.150, DC 9902. When the rating schedule does not provide a zero percent evaluation for a DC, a noncompensable rating shall be assigned when the requirements of a compensable rating are not met. See 38 C.F.R. § 4.31. In July 2014, the private dentist completed a VA Form 21-0960D-1. The dentist stated the Veteran had no loss of mandible or maxilla due to anatomical loss or bone injury. The dentist opined that the Veteran’s dental disability did not affect his ability to work. On August 21, 2014, the Veteran filed an increased rating claim for oral and dental condition. In May 2015, the Veteran reported that the lower ridge had continued to lose bone since his teeth were extracted in 1971. The VA examiner stated the Veteran had lost part of mandible or mandibular ramus in the form of severe atrophy of mandibular ridge due to early tooth loss. The examiner opined that the Veteran’s dental disabilities had no effect on his ability to work. At the December 2019 hearing, the Veteran reported that he had problems getting the upper and lower jaws to meet up properly and stated that this was due to there being very little bone in the mandible. The Veteran stated that the loss of mandible had stabilized. In December 2019, the Veteran’s private dentist stated the Veteran had very atrophic mandibular ridge. In March 2020, the VA examiner stated the Veteran did not have not a complete loss of mandible or loss of one-half or more of mandible, but had loss of less than one-half of mandible not involving temporomandibular articulation and replaceable by graft or implants. The examiner opined that the Veteran’s dental disability did not affect his ability to work. In written pleadings and at the December 2019 hearing, the Veteran asserts that he is entitled to an increased evaluation for a dental disability. From August 21, 2013, to September 9, 2017, the Board finds that a noncompensable rating is warranted. Pursuant to the Board’s February 2020 remand, the March 2020 VA examiner considered the Veteran’s atrophy of the mandibular ridge and opined that there was loss of less than one-half of mandible, but not loss of one-half or more of mandible. Because the rating schedule does not provide an evaluation for loss of less than approximately one-half of mandible, the March 2020 examiner’s opinion is consistent with a noncompensable rating. See 38 C.F.R. §§ 4.31, 4.150, DC 9902 (2013). A 30 percent rating is not warranted because the evidence, to include the March 2020 examiner’s opinion, did not show loss of approximately one-half of mandible. See 38 C.F.R. § 4.150, DC 9902 (2013). An effective date for a claim of an increased rating cannot be awarded more than one year from the date of the claim. See 38 C.F.R. § 3.400(o). Because the evidence of record, to include the May 2015 and March 2020 VA examinations, showed that it was factually ascertainable that an increase in disability occurred within the one-year period prior to the filing of the claim, the Board grants an effective date of August 21, 2013, one year prior to filing the current claim. Effective September 10, 2017, the Board finds that a 10 percent rating is warranted. Pursuant to the Board’s February 2020 remand, the March 2020 VA examiner considered the Veteran’s atrophy of the mandibular ridge and opined that there was loss of less than one-half of mandible not involving temporomandibular articulation and replaceable by graft or implants. This evidence is consistent with a 10 percent rating based on the requirements of DC 9902. See 38 C.F.R. § 4.150, DC 9902. The Board finds that a higher evaluation is not warranted because the evidence, to include the March 2020 examiner’s opinion, did not show loss of one-half or more of mandible, loss of less than one-half of mandible involving temporomandibular articulation, or loss of less than one-half of mandible not involving temporomandibular articulation and not replaceable by prosthetics. See id. (Continued on the next page.)   The Board has considered the Veteran’s testimony that he had very little bone in the mandible and that the loss of mandible had stabilized. This testimony does not necessarily show loss of one-half of mandible. To the extent that this testimony is interpreted as such, the Veteran, as a layperson, does not have the specialized training to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the extent of loss of mandible is a matter not capable of lay observation, and requires medical expertise to determine. The Board finds the March 2020 VA examiner’s opinion to be significantly more probative than the Veteran’s lay testimony. Moreover, to the extent that the Veteran’s testimony or representative’s assertions suggest extraschedular consideration under DC 9902, the Board finds that extraschedular consideration is not warranted for reasons identified earlier in this decision. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Craig Ormson, 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.