Citation Nr: 21011970 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-32 186A DATE: March 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for painful scars on the right eye and nose is denied. Entitlement to an initial compensable rating for a dental injury with implant, tooth number 8 is denied. FINDINGS OF FACT 1. The Veteran has two facial scars, involving the nose and right eye region, which are tender on palpation but not unstable with frequent loss of covering of skin over scar. His scars have not been manifested by three or four scars that are unstable or painful. 2. The evidence shows that the Veteran’s loss of teeth was not due to loss of the substance of the body of the maxilla or mandible without loss of continuity, and that the masticatory surfaces can be restored with suitable prosthesis. The Veteran’s dental disability does not result in loss of vocal articulation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for painful scars on the right eye and nose have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. The criteria for entitlement to an initial compensable rating for a dental injury with implant, tooth number 8 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.150, Diagnostic Code 9913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1999 to July 2007. This appeal arises from an August 2013 rating decision, granting service connection for scars on the right eye and nose based on disfigurement, and assigning an initial 10 percent rating, and granting service connection for a dental injury, and assigning an initial 0 percent rating. The Veteran appealed for higher initial ratings. In May 2018, the Board denied an initial compensable rating for a dental injury with implant; and denied an initial rating in excess of 10 percent for facial scars on the right eye and nose, involving disfigurement. However, the Board partially granted the Veteran’s claim for a separate compensable rating for painful scars on the right eye and nose (i.e., exclusive of the rating based on disfigurement), assigning a 10 percent rating, but no higher. Accordingly, in an August 2018 rating decision, the AOJ implemented this 10 percent award for painful facial scars. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC/Court). In an October 2019 Memorandum Decision, the Court partially vacated the May 2018 Board denials of an initial compensable disability rating for a service-connected dental injury with implant and a higher rating in excess of 10 percent for painful scars on the right eye and nose, and remanded those matters to the Board for further development and readjudication, specified in that order. However, the Court deemed the appeal was abandoned as the Board’s denial of an initial rating in excess of 10 percent for facial scars based on disfigurement. Accordingly, in June 2020, the Board remanded the issues of entitlement to higher initial ratings for painful facial scars and a dental injury with implant to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to an initial rating in excess of 10 percent for painful scars on the right eye and nose The Veteran’s facial scars disability, for painful scars on the right eye and nose, has been assigned an initial 10 percent rating, under 38 C.F.R. § 4.118, DC 7804 for unstable or painful scars. The Veteran asserts he is entitled to a higher initial evaluation, as his nose shifts and is not symmetrical, and the scar on his nose is tender. See August 2012 claim and September 2013 notice of disagreement (NOD). As background, in his August 2012 claim, he reported that “While in the Navy, on leave, I got jumped and was hit in my nose. I reported to medical and was bandaged up and sent on my way. I have a scar as a result and it is tender.” By history, the Court’s October 2019 Memorandum Decision concluded that the Board provided an inadequate statement of reasons or bases for its determination that the duty to assist had been met regarding the Veteran’s scars, as a new medical examination was necessary because the August 2013 report did not contemplate his “current medical status.” When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Given the Veteran’s contention and the severity of his scars may have materially changed since he was last examined for VA compensation purposes in 2013, the Board’s June 2020 remand directed the AOJ to obtain an additional VA medical examination on the severity of the Veteran’s painful facial scars on the right eye and nose. On remand, the AOJ arranged for a VA examination of his facial scars in October 2020. The Board is therefore satisfied there was compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of the principles of Stegall v. West, 11 Vet. App. 268, 271 (1998), when the examiner made the ultimate determination required by remand). The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. There is highly probative evidence against a higher initial rating from the August 2013 and October 2020 VA scars examinations. The August 2013 VA examiner found 2 painful scars on the head, face or neck, specifically on the nose, measuring 1 x 0.1 cm (0.1 sq. cm.), and on the right eye region, measuring 1 x 0.1 cm (0.1 sq. cm.), or a total area of 0.2 sq. cm. The August 2013 VA examiner found the scars were not painful, not unstable with frequent loss of covering of skin over scar, and no scar was both painful and unstable. The facial scars were not due to burns. However, the nose scar had a surface contour elevated on palpation. The scars had no abnormal pigmentation or texture of facial scars; no gross distortion or asymmetry of facial features or visible or palpable tissue loss; no other signs or symptoms of facial scars; and no limitation of function, including no functional impact on ability to work. There is further highly probative evidence against the claim from the October 2020 VA scars examination. The examiner found 2 painful scars on the head, face or neck, specifically on the right side of the nose, measuring 1 x 0.5 cm (0.5 sq. cm.), and on the right eye, measuring 1.5 x 0.3 cm (0.45 sq. cm.), or a total area of 0.95 sq. cm. The scars were not unstable with frequent loss of covering of skin over scar, although both scars were tender to palpation. The facial scars were not due to burns. The examiner also found the scars showed no elevation, depression, adherence to underlying tissue or missing underlying soft tissue; no abnormal pigmentation or texture of facial scars; no gross distortion or asymmetry of facial features or visible or palpable tissue loss; no other signs or symptoms of facial scars; and no limitation of function, including no functional impact on ability to work. A review of VA treatment records does not support an increased evaluation. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran’s scar is not manifest by three or four scars that are unstable or painful. As discussed above, the Veteran’s separate service-connected evaluation for facial scars based on disfigurement, under DC 7800 is not presently on appeal. However, the Board has also considered the other Diagnostic Codes pertaining to scars under 38 C.F.R. § 4.118. In that regard, the Veteran’s scars are not deep and nonlinear, and not associated with underlying soft tissue damage. Although they are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater (or 929 sq. cm). Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include lay reports of record, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For instance, the Board accepts that the scar on his nose is tender, but this does not warrant a higher rating in excess of 10 percent under the applicable facial scar criteria. See August 2012 claim and September 2013 NOD. Further, he does not assert, and medical records do not show, that the Veteran’s scars are manifest by three or four scars that are unstable or painful. Moreover, although the Veteran’s assertion that his nose shifts and is not symmetrical is competent and credible, and thus probative, it is outweighed by the highly probative findings of the VA examiners specifically finding the facial scars demonstrated no gross distortion or asymmetry of facial features. See September 2013 NOD. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial disability rating in excess of 10 percent for the Veteran’s painful facial scars, on the right eye and nose. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a compensable initial rating for a dental injury with implant, tooth number 8 The Veteran’s dental injury with implant, tooth number 8, has been assigned a 0 percent rating, under DC 9913. As background, in his August 2012 claim, he reported, “While in the Navy, on leave, I got jumped and was hit in my mouth and my tooth was knocked out. I was treated on base and was given a veneer. I have issues with this injury to date, as it prevents me from speaking clearly. I slur words as a result of my injury.” He also contends difficulty chewing some foods, such as apples. See September 2013 NOD. By history, the Court’s October 2019 Memorandum Decision concluded that the Board erred by failing to consider the Veteran’s reports of loss of vocal articulation in denying a compensable rating for this disability. That is, the Board did not properly consider the instructions in Note (2) of § 4.150, which states that VA must separately evaluate loss of vocal articulation, loss of smell, loss of taste, neurological impairment, respiratory dysfunction, and other impairments under the appropriate diagnostic code and combine under 38 C.F.R. § 4.25 for each separately rated condition. The Board’s June 2020 remand indicated that although the Veteran has been afforded two VA examinations in August 2013 and August 2014, neither examiner assessed the Veteran’s contention that his dental injury prevents him from speaking clearly and causes him to slur words as indicated in an August 2012 statement. See Barr, 21Vet. App. at 311. As such, the Board’s June 2020 remand directed the AOJ to obtain a new VA examination, particularly in order to obtain medical evidence regarding whether the Veteran has loss of vocal articulation due to the Veteran’s service-connected residuals of dental injury with implant. On remand, the AOJ arranged for a VA examination of his dental disability in October 2020, along with the requested medical opinion on vocal impairment. The Board is therefore satisfied there was compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of the principles of Stegall v. West, 11 Vet. App. 268, 271 (1998), when the examiner made the ultimate determination required by remand). As an initial mater, 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. See 82 Fed. Reg. 36,080 (Aug. 3, 2017). The Board notes the recent amendment to 38 C.F.R. § 4.150 did not include alteration of DC 9913. Pursuant to DC 9913, a compensable rating is warranted for loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity, where the lost masticatory surface cannot be restored by suitable prosthesis. A 10 percent rating is assigned when all upper and lower teeth on one side are missing, when all lower anterior teeth are missing, or when all upper anterior teeth are missing. A 20 percent rating is assigned when all upper and lower anterior teeth are missing, or when all upper and lower posterior teeth are missing. A 30 percent rating is assigned for loss of all upper teeth, or with loss of all lower teeth. A 40 percent rating is assigned for loss of all teeth. 38 C.F.R. § 4.150. The Board considers the several probative VA examinations of record during the pendency of the appeal. Initially, the August 2013 VA dental examination diagnosed the Veteran with loss of teeth, periodontal disease and loose dental restoration (implant on tooth #8). The VA examiner noted the Veteran reported that in June of 2002, while in service, he was found in a confrontation with 5 other men, and a fist fight started. The Veteran suffered injuries that has been documented in the claims file. At the time of the August 2013 VA examiner, the examiner noted he had an implant on the front upper tooth, where the Veteran reports that he broke his tooth during this fight; and that there was a failing tooth #8 implant or crown. In this case, a compensable rating is not warranted under DC 9913 as the evidence shows loss of teeth was not due to loss of substance of body of maxilla or mandible without loss of continuity, and that the masticatory surfaces can be restored with suitable prosthesis. There is highly probative evidence from the August 2013, August 2014 and October 2020 VA examination reports which found the Veteran’s loss of teeth (specifically tooth # 8) was not due to loss of substance of body of maxilla or mandible without loss of continuity; and further found that masticatory surfaces can be restored by suitable prosthesis. The Board has also considered whether a separate rating is warranted for other impairment due to his service-connected dental or oral conditions, and has determined that it is not. Note (2) of 38 C.F.R. § 4.150 instructs the rating specialist to separately evaluate loss of vocal articulation and other impairments caused by a service-connected dental or oral condition under the appropriate diagnostic code and combine under § 4.25 for each separately rated condition. The October 2020 VA examiner provided highly probative evidence specifically finding the Veteran’s service-connected dental disability against the possibility of loss of vocal articulation. Notably, the October 2020 VA examiner remarked that “[tooth] #8 has an existing implant and implant crown. Tooth is functional. No pathology found. [Tooth] #8 is the same size as #9. Patient is good with restoration. No complaint. No recession. Lingual morphology is normal. Speech is normal. No abnormal articulation of speech found.” An addendum opinion to the October 2020 VA dental examination stated that the assessment did not indicate any anatomical issues causing speech impairment. The Board has also considered whether a higher or separate rating is warranted under any other potentially applicable diagnostic code related to dental or oral conditions, and has determined that it is not. The highly probative evidence from the VA examination reports does not indicate the dental disability results in any chronic osteomyelitis, osteonecrosis or osteoradionecrosis of the maxilla or mandible; loss, nonunion, or malunion of the mandible or maxilla; temporomandibular disorder (TMD); condyloid process; coronoid process; loss of hard palate; or benign or malignant neoplasms. See August 2013, August 2014 and October 2020 VA examination reports. A review of VA treatment records does not support an increased evaluation. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include lay reports of record of slurring speech and difficulty chewing, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, his lay statements are outweighed by the highly probative findings of the October 2020 VA examiner specifically finding the dental disability was not productive of any speech impairment. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable initial disability rating for the Veteran’s dental disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. (Continued on the next page) The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.