Citation Nr: 21028898 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-04 938 DATE: May 12, 2021 ORDER Prior to January 3, 2020, a rating in excess of 40 percent for residuals of maxilla fracture with bone graft and prosthetic bridge is denied. From January 3, 2020, a rating of 50 percent, but no higher, for residuals of maxilla fracture with bone graft and prosthetic bridge is granted. FINDINGS OF FACT 1. Prior to January 3, 2020, the service-connected residuals of maxilla fracture with bone graft were not manifested by loss of more than 50 percent of the maxilla. 2. From January 3, 2020, the service-connected residuals of maxilla fracture with bone graft were manifested by loss of more than 50 percent of the maxilla but were replaceable by prosthesis. CONCLUSIONS OF LAW 1. Prior to January 3, 2020, the criteria for a rating in excess of 40 percent have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7. 4.150, DC 9915. 2. From January 3, 2020, the criteria for a rating of 50 percent, but no higher, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7. 4.150, DC 9914. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1972 to September 1974. This appeal is from an April 2015 rating decision that reduced the Veteran's rating for his service-connected residuals of maxilla fracture with bone graft and prosthetic bridge. In January 2020, the Veteran had a personal hearing with the undersigned VLJ. In April 2020, the Board restored the Veteran's 40 percent rating for his service-connected residuals of maxilla fracture with bone graft and prosthetic bridge, and remanded the issue of a rating higher than 40 percent for this service-connected disability. Residuals of maxilla fracture with bone graft and prosthetic bridge The Veteran seeks a higher rating for his service-connected residuals of maxilla fracture with bone graft and prosthetic bridge, hereinafter "maxilla disability." Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Throughout the appellate period, the Veteran's maxilla disability has been rated under Diagnostic Code 9915 at the maximum available rating of 40 percent. Diagnostic Code 9915 is used when there is loss of half or less of the maxilla. Under Diagnostic Code 9915, a maximum 40 percent rating is warranted when there is loss of 25 to 50 percent of the maxilla not replaceable by prosthesis. A rating in excess of 40 percent is available under Diagnostic Code 9914, which is used when there is loss of more than half or less of the maxilla. Under Diagnostic Code 9914, a 50 percent rating is warranted when there is loss of more than half (i.e., more than 50 percent) of the maxilla replaceable by a prosthesis and a 100 percent rating is warranted when the loss of more than half of the maxilla is not replaceable by a prosthesis. 38 C.F.R. § 4.150, DC 9914 and 9915 Prior to January 3, 2020, the evidence of record does not support that the Veteran experienced more than 50 percent bone loss associated with this maxilla disability. By way of example, a February 2015 VA examination found less than 25 percent loss of the maxilla. From January 3, 2020, the record indicates that the Veteran experience greater than 50 percent loss of the maxilla. In January 2020, the Veteran was examined by a private clinician. The private clinician opined that the Veteran had more than 50 percent loss of the maxilla. The private clinician further indicated that a prosthesis was available, to include implants or a removable prosthesis. Later on, a February 2021 VA examination indicated that the Veteran's maxilla disability was manifested by a defective bridge with visible vertical alveolar bone loss of approximately 50 percent and confirmed the diagnosis of maxilla fracture with bone graft and prosthetic bridge. The VA examiner further indicated that a prosthesis by a removable partial denture was possible. Consequently, the Board resolves reasonable doubt in the Veteran's favor and finds that his maxilla disability was manifested by bone loss of greater than 50 percent. 38 C.F.R. § 4.3. Similarly, to the extent they record attributes bone loss to nonservice-connected periodontal disease, the Board resolves reasonable doubt in the Veteran's favor and finds the private clinician opinion is sufficient to attribute bone loss to the maxilla disability. 38 C.F.R. § 4.3. Based on the evidence of record, the Board finds that prior to January 3, 2020, the evidence does not demonstrate loss of greater than 50 percent of the maxilla. Consequently, a rating in excess of 40 percent is not available during that timeframe. Furthermore, as stated above, a 40 percent rating is the maximum rating available under Diagnostic Code 9915. However, from January 3, 2020, the evidence is in equipoise as to whether there was greater than 50 percent loss of the maxilla. Resolving all doubt in the Veteran's favor, the Board finds that a 50 percent rating is warranted under DC 9914. Moreover, both the private clinician and the February 2021 VA examiner found that the loss of the maxilla was replaceable by prosthesis. As the medical evidence demonstrates that the loss of the maxilla is replaceable by prosthesis a 100 percent rating is not available. Consequently, from January 3, 2020 a 50 percent rating, but no higher, is warranted under Diagnostic Code 9914. Accordingly, prior to January 3, 2020, a rating in excess of 40 percent under Diagnostic Code 9915 is not warranted. However, resolving all doubt in the Veteran's favor, from January 3, 2020 a 50 percent rating, but no higher, under Diagnostic Code 9914 is warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AD 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.