Citation Nr: 21013852 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-05 546 DATE: March 10, 2021 ORDER Entitlement to a 10 percent disability rating for residuals of a deviated septum is granted. Entitlement to service connection for a dental disability as due to dental trauma is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s deviated septum has manifested in complete blockage of the right nasal passage. 2. The Veteran does not have a current dental disability for compensation purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent disability rating, but no higher, for residuals of a deviated septum have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.97, Diagnostic Code 6502. 2. The criteria for entitlement to service connection for a dental disability for compensation purposes have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1956 to May 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In November 2018, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. A June 2020 rating decision granted entitlement to service connection for bilateral hearing loss. As this represents a full grant of the benefits sought, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The June 2020 rating decision also granted entitlement to service connection for temporomandibular disorder (TMD). The Board notes that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment under 38 C.F.R. § 3.381. Mays v. Brown, 5 Vet. App. 302 (1993). In dental claims, the Agency of Original Jurisdiction (AOJ) adjudicates the claim for service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As this matter stems from an adverse determination by the AOJ, the appeal is limited to the issue of service connection for a dental disorder for the purpose of compensation. The VAMC did not adjudicate and the AOJ did not refer the claim of service connection for a dental disorder for the purpose of obtaining VA outpatient dental treatment. Therefore, the Board cannot adjudicate that issue. The appellant may resubmit the claim to the AOJ or notify the AOJ that the issue is still pending. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. In initial-rating cases, where the appeal stems from a rating decision granting service connection with respect to the initial evaluation assigned the disability at issue, VA assess the level of disability from the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 125 (1999); 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran’s service-connected deviated septum is rated as noncompensable pursuant to 38 C.F.R. § 4.97, DC 6502, which pertains to traumatic deviation of the septum. Under DC 6502, a maximum 10 percent rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. This is the only schedular rating provided under this diagnostic code. Id. An April 2014 VA examination report reflects that the Veteran experiences intermittent blockage of the right nostril, which is worse in the morning and is relieved by a nasal inhaler. The examiner noted the Veteran’s traumatic deviation had no signs of either partial or complete obstruction on either side. See April 2014 Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (DBQ). A December 2019 VA examination report also noted that the Veteran’s traumatic deviation had no signs of either partial or complete obstruction on either side. See December 2019 Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ. Throughout the appeal period, the Veteran has submitted statements and testimony addressing the severity of the residuals of his deviated septum. See October 2013 Statement in Support of Claim (“I have nose blockage”); October 2018 Hearing Transcript. Additionally, VA treatment records reflect the Veteran has been prescribed nasal decongestants for his obstructions. See July 2016 Medication List (prescribing pseudoephedrine for nasal congestion). The Veteran is competent to report observable symptomatology in the form of obstructed nasal passages, as such are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Veteran is credible in his reports of his nasal symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Based on the foregoing, the Board finds that the Veteran’s residuals of a deviated septum have manifested in complete obstruction of his right nasal passage. Thus, pursuant to 38 C.F.R. § 4.7, and resolving all doubt in favor of the Veteran, as is required by law, the Board is granting the Veteran an initial rating of 10 percent, and no more, for his service-connected residuals of a deviated septum. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection The Veteran seeks service connection for a dental disability. Specifically, he asserts that he lost teeth as a result of an in-service assault. As noted above, he is already service connected for a temporomandibular disorder (TMD). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, including conditions of the mandible, maxilla, ramus, condyloid process, coronoid process, hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. These conditions include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, loss of the condyloid or coronoid process, or loss of any part of the hard palate. Compensation is also available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible; bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment and cannot be considered for compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. The question for the Board is whether the Veteran has current dental disability for compensation purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the preponderance of the evidence weighs against a finding that the Veteran has any additional dental disability that may be service connected for compensation purposes. The evidence does not support a finding that any missing teeth or bone and tissue loss constitutes loss of substance of body of the maxilla or the mandible as required for compensation for missing teeth. See 38 C.F.R. § 4.150, DC 9913. In this case, the Veteran was involved in a July 1956 in-service altercation in which he fractured his nose. Service connection is in effect for deviated septum (previously rated as residuals, nose fracture) and TMD. The Veteran testified that following his in-service fractured nose, he continued to have dental health issues, with pain, infections, and subsequent loss of teeth. See October 2018 Hearing Transcript. The Veteran’s service treatment records (STRs) show he was missing teeth numbers 12, 13, 18, 19, and 30 upon his entry to active duty service. See April 1956 Initial Dental Examination. After the in-service altercation which fractured his nose, teeth numbers 9 and 10 were given crowns. See July 1956 Attendance Record; March 1957 Attendance Record. Tooth number 5 was extracted six months later. See January 1957 Attendance Record. Upon separation, teeth numbers 5, 12, 13, 18, 19, and 30 were noted as missing, tooth number 10 was noted as restorable. See April 1959 Report of Medical Examination. A January 2020 VA examination report noted the Veteran had loss of teeth and TMD. No other conditions were noted, including loss of mandible or maxilla. See January 2020 Oral and Dental Conditions DBQ. An October 2020 VA medical opinion addendum found there was no loss of teeth due to loss of substance of body of maxilla or mandible. The examiner stated that he was unable to find that all of the Veteran’s current missing teeth were lost to the in-service assault. He did note that teeth numbers 5, 12, 13, 18, 19, and 30 were likely lost due to the trauma. As stated above, however, the Veteran was missing teeth numbers 12, 13, 18, 19, and 30 upon his entry into active duty service. The examiner further noted that the masticatory surfaces could be restored by suitable prosthesis. See October 2020 Addendum Opinion. While the evidence reflects an in-service nose fracture, which caused the Veteran to develop TMD, and for which he is service connected, the evidence does not demonstrate a loss of teeth due to loss of substance of the body of the maxilla or mandible due to that in-service trauma or disease. Moreover, the service records do not indicate that he suffered from a loss of substance of the body of the maxilla or mandible following his reported injury in service. There is no indication that tooth number 5 could not be restored. In sum, the Board finds that the Veteran does not have a current dental disability of teeth for VA compensation purposes, apart from TMD. As such, the Board concludes that the criteria for entitlement to service connection for compensation purposes for a dental disability have not been met and, to this extent, his claim must therefore be denied. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.381, 4.150. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.