Citation Nr: 21023234 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-24 601 DATE: April 20, 2021 ORDER Entitlement to an initial compensable disability rating for loss of tooth number 25 is denied. FINDING OF FACT The Veteran is in receipt of service connection for one missing tooth, the masticatory surface of which is restorable by a prosthesis. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for loss of tooth number 25 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.10, 4.150, Diagnostic Code 9913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) regional office. In November 2020, the Veteran testified before the undersigned Veterans Law Judge. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran is currently assigned a noncompensable rating for loss of tooth number 25 pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9913. Under Diagnostic Code 9913, a noncompensable rating is assigned when the loss of masticatory surfaces can be restored by suitable prosthesis. When the lost masticatory surfaces cannot be restored, a 10 percent rating is assigned where all upper and lower on one side, all lower anterior, or all upper anterior teeth are missing; a 20 percent rating is assigned where all upper and lower posterior or all upper and lower anterior teeth are missing; a 30 percent rating is assigned with the loss of all upper or all lower teeth; and a 40 percent rating is assigned when all teeth are missing. The Veteran underwent VA examination in connection with this claim in March 2017. The examiner noted no anatomical loss or bony injury to the mandible or maxilla. The Veteran was missing teeth number 1, 2, 7, 8, 9, 10, 14, 16, 17, 24, 25, 31, and 32; however, he has only been awarded service connection for the loss of tooth number 25. The examiner indicated that teeth 24 and 25 were replaced by a removable partial denture. The examiner noted that all other teeth, except for the third molars (wisdom teeth), were replaceable. Finally, the examiner opined that the missing tooth did not cause functional impact that would affect the Veteran’s ability to work. During the November 2020 hearing, the Veteran testified that he was not satisfied with the fit or color of his prothesis, and that it caused him gum pain, particularly with eating, so that he preferred to eat soft foods. He further testified that he was embarrassed to be missing teeth and that this affected him psychologically. Upon review, the Board finds that a compensable rating is not warranted at any time during the period on appeal. In that regard, the Veteran is only service connected for the loss of one tooth, the masticatory surface of which is restored by a removable prosthesis. The Board acknowledges that the Veteran is dissatisfied with his prosthesis. However, this fact alone is not sufficient to support a grant of an increased rating as the medical evidence demonstrates that his missing tooth can be restored by a removable partial denture. The Board notes that the Veteran’s representative argued that an increased rating should be granted pursuant to 38 C.F.R. § 4.10. This regulation provides that the “basis of disability evaluations is the ability of the body as a whole . . . to function under the ordinary conditions of life including employment.” The Board has considered this argument and is sympathetic to the Veteran’s concerns, however, disability ratings may only be assigned for disabling manifestations of a condition. The evidence does not suggest, and the Veteran has not alleged, that his single service-connected missing tooth, to include its appearance, results in functional impairment. To the extent that the Veteran contends the appearance of his teeth causes him psychological distress, the Board notes that the Veteran is in receipt of service connection for a psychiatric disability and is assigned a total rating for this disability throughout the period on appeal. The rating assigned for this disability accounts for mental health symptoms. To the extent that the issue of consideration of an extraschedular rating was raised by the Veteran’s testimony that he does not believe that the rating schedule adequately accounts for his symptoms, the Board notes that consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran’s loss of tooth number 25 is rated under Diagnostic Code 9913. The record shows that he has complaints and findings of pain from his prosthesis and psychological distress due to the appearance of his teeth. Diagnostic Code 9913 does not specifically list all the Veteran’s symptoms. Nonetheless, Diagnostic Code 9913 does specifically contemplate the use of a prosthesis and accounts for missing teeth; it follows that the cosmetic effect of missing teeth was considered in the Rating Schedule. There is no indication that the Veteran’s disability picture is exceptional in that it differs from other similarly-situated individuals. Here, the manifestations of the Veteran’s missing tooth are reasonably contemplated by Diagnostic Code 9913. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not necessary. However, even if the first element were met, the Board cannot find the second Thun element has been met. In regard to the second Thun element, even if the Veteran’s disability picture was exceptional, it does not exhibit other related factors, such as marked interference with employment or frequent periods of hospitalization. The evidence does not demonstrate, and the Veteran has not alleged, that his disability manifests in factors as extreme as marked interference with employment or frequent periods of hospitalization. Therefore, the Board concludes that the Veteran’s disability picture does not exhibit other related factors such as marked interference with employment or frequent periods of hospitalization that would warrant further extraschedular consideration. As the criteria for a compensable rating, to include on an extraschedular basis, for loss of tooth number 25 have not been met, the claim is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.