Citation Nr: 21041827 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-61 855 DATE: July 10, 2021 ORDER An initial 30 percent rating, but no higher, for removal of teeth and dental trauma (hereinafter "dental condition") is granted. REMANDED Entitlement to an initial rating in excess of 10 percent prior to June 21, 2019, and in excess of 30 percent thereafter, for adjustment disorder with anxiety and insomnia disorder (hereinafter "acquired psychiatric disorder") is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence is at least in equipoise that his dental condition results in the loss of all lower teeth where the lost masticatory surface cannot be restored by suitable prosthesis. CONCLUSION OF LAW The criteria for an initial 30 percent rating, but no higher, for a dental condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.150, Diagnostic Code 9913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1967 to October 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2014 and February 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was previously represented in his appeal by Disabled American Veterans. However, in an August 2015 correspondence, the Veteran revoked this representation and indicated that he wishes to proceed in his appeal pro se. The Board remanded these matters in December 2018 for additional development. In December 2020, the RO issued a rating decision granting a 30 percent rating for the acquired psychiatric disorder effective June 21, 2019. As this increase constitutes a partial grant of the benefit sought, the claim remains on appeal and has been recharacterized accordingly. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal has now been properly returned to the Board for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to an initial compensable rating for a dental condition The Veteran seeks entitlement to an initial compensable rating for a dental condition, which is currently assigned a noncompensable (zero percent) rating effective April 15, 2013. The Veteran's dental disability is rated pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9913 for loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity. Under this diagnostic code, a noncompensable rating applies where the loss of masticatory surface can be restored by suitable prosthesis. By contrast, compensable ratings apply where the lost masticatory surface cannot be restored by suitable prosthesis. Where compensable ratings apply, Diagnostic Code 9913 compensates for loss of teeth. The diagnostic criteria for such an award requires the loss of all teeth (40 percent rating), all upper teeth (30 percent rating), all lower teeth (30 percent rating), all upper and lower posterior teeth (20 percent rating), all upper and lower anterior teeth (20 percent rating), all upper anterior teeth (10 percent rating), all lower anterior teeth (10 percent rating), or all upper and lower teeth on one side (10 percent rating). 38 C.F.R. § 4.150, Diagnostic Code 9913. The Veteran specifically contends that he is entitled to a 30 percent rating for his dental condition because his lower teeth cannot be restored by suitable prosthesis. The Board has reviewed the lay and medical evidence of record, which show that the Veteran suffered an accident during military service that resulted in the removal of all of his upper and lower teeth. At a May 2014 VA examination, a VA dentist noted that all the Veteran's teeth were lost due to trauma. The Veteran reported that he has not worn a mandibular complete denture since service because he has never had one that fit properly. He stated that he was currently satisfied with his maxillary complete denture. The examining dentist did not complete a VA dental disability benefits questionnaire (DBQ) because the Veteran's claims file was not available for review. As such, no opinion was rendered as to whether the lost masticatory surface can or cannot be restored by suitable prosthesis. According to a March 2017 VA dentistry note, the Veteran presented for a comprehensive oral evaluation. Upon examination, the VA dentist noted that all of the Veteran's teeth are missing with no remaining functional teeth, roots, or implants, but that he "has a good upper denture for the last 20 years." The dentist noted that there have been six prior attempts to fabricate a lower complete denture for the Veteran that were unsuccessful. The Veteran was found to have a "very resorbed lower arch bone" that is "paper width" with bilateral torus mandibularis. The Veteran was informed that torus mandibularis can be a big obstacle for the success of the lower fabricate denture. The Veteran underwent a VA oral and dental conditions examination in November 2020. The Veteran reported that he has had six sets of lower dentures made, three during service and three after service; however, the dentures have never fit him. Upon examination, the VA examiner noted the loss of all of the upper and lower teeth. The examiner opined that the masticatory surface can be restored by placing implants, followed by a denture. However, later in the examination report, the examiner noted that the Veteran "has a long term history of inability to wear his lower denture and has made several attempts over a period of time to get new dentures made... His upper and lower ridges are resorbed, especially his lower ridge which is razor knife sharp. The existing dentures upon examination were too big to fit the [Veteran's] mouth [or] help provide any functional use." The examiner then stated that the Veteran "is unable to tolerate lower denture as it never fits properly." In a January 2021 statement, the Veteran asserted that it would not be feasible for him to be fitted with a suitable lower denture without undergoing a complicated oral surgery, which may or may not be successful. He explained that, due to his "paper width" lower mandible, an implant could only be placed if he underwent a bone graft, using a bone from a cadaver, to increase the width of his mandible. The Veteran pointed out that the November 2020 VA examiner did not mention this additional step when he stated that "the masticatory surface can be restored by placing implants, followed by a denture." The Veteran explained that such a procedure would require complicated oral surgery, which would expose him to the risk of infection and require a prolonged recovery. He also expressed discomfort with having a cadaver bone placed in his jaw. Furthermore, he worried that being forced to undergo such a procedure would significantly exacerbate the symptoms of his service-connected psychiatric disorder. The Veteran concluded by stating he does not believe VA should be able to force him to undergo such a physically and mentally demanding procedure in order to avoid compensating him for his service-connected loss of teeth. After careful review of the medical and lay evidence of record, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise that the Veteran's lost masticatory surface cannot be restored by suitable prosthesis. In making this finding, the Board recognizes that the evidence of record establishes that the Veteran has never had a properly-fitting lower denture, despite six prior attempts to fabricate one; therefore, he has not worn a lower denture since service, which was over 45 years ago. Moreover, both VA examiners, in May 2014 and November 2020, found the Veteran's lower mandible to be resorbed, which they described as "paper width" and "razor knife sharp," respectively. Likewise, the VA dentist who examined the Veteran in May 2017 informed him that the condition of his mandible "can be a big obstacle for the success of the lower fabricate denture." Although the November 2020 VA examiner ultimately determined that the Veteran's masticatory surface can be restored by placing implants, followed by a denture, the examiner did not explain this finding in light of his later remark that the Veteran is "unable to tolerate lower dentures as it never fits properly." The examiner also did not explain how implants could be properly placed when the Veteran has a highly resorbed, "razor knife sharp" mandible. Because the November 2020 VA examiner did not provide an explanation for his finding that the Veteran's masticatory surface can be restored by suitable prosthesis in light of evidence that suggests otherwise, the Board does not find this opinion to be probative as to the matter at issue. In this case, the Board is most persuaded by the medical evidence demonstrating that the Veteran does not have any lower teeth and that he has not been able to wear a lower denture for over 45 years. The Board finds it significant that, despite several attempts, a dentist has never been able to provide a suitable prosthesis for the Veteran, nor does it appear that any other alternative has been proposed. If the only option for restoring the use of the masticatory surface is for the Veteran to undergo complicated and potentially risky oral surgical procedures, to include a bone graft and the placement of implants in order to fit the Veteran for a proper lower denture, the Board does not find this to be a suitable option for the Veteran. Based on the foregoing, the Board concludes that the evidence is at least in relative equipoise that the Veteran's dental condition results in a loss of masticatory surface that cannot be restored by suitable prosthesis. Because the Veteran has lost all of his lower teeth, which cannot be restored by suitable prosthesis, the criteria for an initial 30 percent rating under Diagnostic Code 9913 have been met. However, since there is no evidence or argument by the Veteran than he does not have a suitable prosthesis for his lost upper teeth, a maximum 40 percent rating under Diagnostic Code 9913, based on the loss of all teeth, cannot be assigned. 38 C.F.R. § 4.150. All other potentially-applicable diagnostic codes have been considered but are not for application here. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Accordingly, an initial 30 percent rating, but no higher, for the Veteran's dental condition is granted. In making this finding, the Board has resolved all reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Unfortunately, the issue remaining on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. Entitlement to an initial rating in excess of 10 percent prior to June 21, 2019, and in excess of 30 percent thereafter, for an acquired psychiatric disorder is remanded. The Veteran seeks a higher rating for his service-connected acquired psychiatric disorder, diagnosed as adjustment disorder with anxiety and insomnia disorder, which is currently rated 10 percent disabling prior to June 21, 2019 and 30 percent disabling thereafter. In statements to VA, the Veteran has reported that he has been prescribed anti-anxiety medications by his private physician, Dr. M., since he began experiencing panic attacks in March 2015. See January 2021 Correspondence. He has also reported that he received treatment at Morristown Medical Center in January 2015 for a panic attack. See November 2015 Correspondence. The Board notes that these potentially-relevant private treatment records have not yet been requested or obtained. VA's duty to assist requires it to make reasonable efforts to secure relevant records not in the custody of a Federal entity, including private treatment records. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Reasonable efforts must include an initial request for the records and at least one follow-up request, if the records are not initially received. In light of the above, the Board finds that remand is required to attempt to retrieve the Veteran's private treatment records before the current severity of his service-connected acquired psychiatric disorder can be properly evaluated. On remand, the RO should request the Veteran to identify any private healthcare providers where he has sought treatment for his psychiatric disorder. The RO should then make reasonable efforts to secure any identified private treatment records on the Veteran's behalf. If the RO is unable to obtain the relevant records sought, it should notify the Veteran of such and update the claims file. The matter is REMANDED for the following action: Contact the Veteran and request that he provide information as to any outstanding private treatment records relevant to the increased rating claim on appeal. Specifically, he should be asked to identify, and provide authorization for VA to obtain, any (i) primary care records from Dr. M. detailing his treatment for psychiatric symptoms; and (ii) records from January 2015 treatment at Morristown Medical Center in Morristown, New Jersey. After obtaining the necessary authorization from the Veteran, the RO must make reasonable efforts to obtain any identified records. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.