Citation Nr: 21025758 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 20-13 213 DATE: April 28, 2021 REMANDED Entitlement to a compensable rating for a dental disorder due to trauma from improperly restored restorations is remanded. REFERRED – VA DENTAL TREATMENT In a November 2018 decision, the Board granted entitlement to service connection for a dental disability, for VA compensation purposes. The January 2019 rating decision implementing the Board decision assigned a noncompensable rating effective June 1, 2011 for a dental disorder due to trauma from improperly restored restorations. The Veteran timely disagreed with the assigned initial rating and perfected the current appeal. The Veteran’s attorney has indicated that service connection for dental treatment purposes is warranted in addition to compensation purposes and should have also been granted by the agency of original jurisdiction (AOJ) in its January 2019 rating decision. As the Board outlined in its previous remand, however, entitlement to dental treatment is not currently within the Board’s jurisdiction as it has not been addressed by the AOJ in the first instance. Given that a claim for service connection for a dental disability is also considered to be a claim for dental treatment (see Mays v. Brown, 5 Vet. App. 302 (1993)) and that a November 2016 VA examiner found the Veteran’s current dental problems were related to her in-service dental implant surgery, and given that the Board recognized the Veteran’s in-service treatment as a trauma in its November 2018 award, the matter was previously referred to the AOJ for appropriate action. Review of the record since the Board’s previous remand of the claim herein reveals that the AOJ has still failed to adjudicate the issue of entitlement to service connection for a dental for treatment purposes, and the matter must once again be referred for appropriate action. The Veteran and her attorney are again encouraged to follow up with the AOJ for status updates on this referral. REASONS FOR REMAND The Veteran served on active duty from September 1990 to February 1994. This matter is before the Board of Veterans’ Appeals (Board) from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As noted above, this rating decision effectuated the Board’s grant of entitlement to service connection for a dental disability for VA compensation purposes, and the Veteran is appealing the initial noncompensable (zero percent) rating assigned by the RO. The matter was previously before the Board and remanded in June 2020 for additional development. While the Board regrets further delay, the matter must once again be remanded. The Veteran’s disability is currently rated pursuant to Diagnostic Code 9913. Under that Code, higher ratings ranging from 10 to 40 percent are available based on the number of missing teeth due to loss of substance of body of maxilla or mandible without loss of continuity. Based on the findings of a November 2016 VA oral and dental conditions examination, the AOJ determined that an initial compensable rating was not warranted under Diagnostic Code 9913, as there was no loss of substance of body of maxilla or mandible without loss of continuity. Pursuant to the Board’s last remand, an additional VA examination was afforded in February 2021; however, the noncompensable rating was again continued under Diagnostic Code 9913 in a February 2021 Supplemental Statement of the Case. However, and as the Board noted in June 2020, the Veteran and her attorney have indicated that her disability causes constant pain and discomfort and that she has had to seek emergency room treatment on multiple occasions due to inflammation and pain. In addition to inflammation and pain, the Veteran’s attorney noted that she can no longer chew solid foods, and that the disability manifests in facial disfigurement, tissue loss, and distortion of the mouth. They have petitioned VA to consider awarding a higher rating under Diagnostic Code 9913, a compensable rating under other analogous Diagnostic Codes given the unique nature of her disability, or an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The Board observes that the November 2016 VA examiner indicated that, at that time, the Veteran did not have anatomical loss or injury to the mouth, lips or tongue, and therefore did not identify the presence of any disfiguring scars, or that any mouth injury caused impairment of mastication. Given the Veteran’s descriptions of current symptoms, which appeared more severe than those described at the November 2016 VA examination, the Board remanded the claim for an updated VA examination to assess the current nature and severity of her condition so that a fully informed decision can be made as to the assigned rating, with appropriate consideration of all potentially applicable Diagnostic Codes. While an updated examination was afforded in February 2021, the Veteran’s attorney has questioned the adequacy of the examination, particularly its brevity. While the Board may assume the competency of any VA medical examiner if they are qualified through education, training, or expertise to offer medical diagnoses, statements, or opinions (Cox v. Nicholson, 20 Vet. App. 563, 568 (2007); 38 C.F.R. § 3.159(a)(1)), the Board does acknowledge that the examination report seems relatively limited in scope, as it only notes that the Veteran’s dental disability manifests in swollen and inflamed gums. The report also notes that the Veteran’s dental disability does not cause functional impairment while being entirely absent any discussion of her more severe subjective complaints. The Board also notes that neither the 2016 examiner nor the more recent examiner conducted or reviewed any diagnostic tests. While she has provided private X-rays that are more than a decade old, the Board is unclear as to how the current severity of this Veteran’s dental disability can be properly rated under all relevant diagnostic codes without an examination report that considers and discusses any appropriate imaging studies. The matter is therefore REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to her, to include dental records. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. Schedule the Veteran for appropriate VA examinations to determine the current symptoms, level of severity, and functional impairment associated with her service-connected dental disability. The claims file, including this Remand, should be reviewed by the examiner and all appropriate diagnostic testing, including x-rays, should be conducted. The examiner must specifically address what functional impairments, if any, are caused by the Veteran’s dental disability, to include on opening and closing her mouth, chewing and eating. The examiner should also indicate whether the dental disability causes disfigurement or distortion of the head, face or neck, and describe that disfigurement. • The examiner should specifically address the Veteran’s assertions that she can no longer chew solid foods, and that the disability manifests in facial disfigurement, tissue loss, and distortion of the mouth. 3. Then, the record should again be reviewed and the claim readjudicated with consideration as to whether higher or separate ratings may be awarded based on the functional impairments identified in the lay and medical evidence of record. The RO should consider all potentially applicable diagnostic codes, to include all relevant codes under the Schedule of Ratings for Dental and Oral Conditions (38 C.F.R. § 4.150), as well as an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.