BVA9504729 DOCKET NO. 91-44 740 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased (compensable) rating for residuals of right mandible fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from October 1960 until December 1968. In the substantive appeal dated in August 1991, the veteran specifically withdrew the issue of an increased rating for right femur fracture residuals from appellate consideration. As well, the record reflects that following a rating action dated in June 1993, the veteran's representative, in correspondence dated in December 1993, wanted to continue an appeal with respect to the issue of an increased rating for residuals of left femur fracture with peroneal palsy and left foot drop. Pursuant thereto, the appellant was afforded a Department of Veterans' Affairs (VA) compensation and pension examination in February 1994. The agency of original jurisdiction subsequently confirmed and continued the prior rating determination and notified the the veteran. The veteran was asked to respond if he disagreed with the determination. Neither he nor his representative presented further disagreement as to this matter. Therefore, the Board of Veterans' Appeals (Board) construes the only issue on appeal at this time to be entitlement to an increased (compensable) rating for residuals of right mandible fracture. This remaining issue on appeal comes before the Board from rating decisions of the St. Petersburg, Florida Regional Office (RO) which have continued to deny an increased rating for the service- connected right ramus mandible fracture residuals. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he now has nonunion of the left upper and lower jaw following trauma and wiring of his right lower jaw was wired for three months in service and . He contends that he is only able to chew on the right side because the left upper and lower jawbones do not meet and that a compensable evaluation is warranted in this instance. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against a compensable evaluation for the service connected right ramus mandible fracture residuals. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The service-connected right mandible fracture is manifested by reported complaints of masticatory difficulty without clinical indications of either nonunion or malunion. No more than a slight degree of disability is demonstrated. CONCLUSION OF LAW Right ramus mandible fracture residuals are no more than noncompensably disabling according to the schedular criteria. 38 U.S.C.A. § § 1151, 7105 (West 1991); 38 C.F.R. Part 4, including diagnostic codes 9903 and 9904 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim has been determined to be well-grounded within the meaning of 38 U.S.C.A. 5107(a). That is, he is found to have presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) The service medical records show that the veteran was involved in an automobile accident in March 1963 and admitted for injuries which included loss of some teeth and closed fracture of the right ramus of the mandible. He underwent closed reduction of the mandible fracture without traction the following September. No further reference to treatment for such is indicated in the service medical records. The appellant was subsequently medically discharged from service for persisting residual symptomatology related to other injuries sustained in the car accident of March 1963. Upon evaluation in August 1968 for discharge from service, it was recorded that there were no complications or sequelae from the right mandible fracture in 1963. By rating action dated in June 1969, service connection for fracture of the right ramus mandible was assigned and a no percent evaluation was assigned under the VA Schedule for Rating Disabilities. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Nonunion of the mandible is evaluated on the basis of the resulting degree of impairment of motion and the relative loss of masticatory function. Moderate associated disability warrants a 10 percent evaluation. A 30 percent evaluation requires severe disability. 38 C.F.R. Part 4, Diagnostic Code 9903. Malunion of the mandible is evaluated on the basis of the resulting degree of impairment of motion and the relative loss of masticatory function. A noncompensable evaluation is warranted with slight displacement. A 10 percent evaluation requires moderate displacement. 38 C.F.R. Part 4, Diagnostic code 9904. Any definite limitation of motion of the temporomandibular articulation interfering with mastication or speech warrants a 10 percent evaluation. A 20 percent requires that motion be limited to 1/2 inch. 38 C.F.R. Part 4, Diagnostic Code 9905. A VA compensation and pension examination was conducted in February 1990. Examination of the veteran's mouth disclosed what was reported to be an apparently normal range of motion at both temporomandibular joints. No gross deformity was noted. An X- ray of the jaw was interpreted as showing no abnormal findings, particularly, no signs of fracture. The veteran was also afforded a VA dental examination in February 1994 which noted no untoward symptomatology relating to the jaw or any mandible fracture residuals. Although the veteran now asserts that the symptoms associated with the service-connected right mandible fracture are more severely disabling than reflected by the currently assigned disability evaluation, the evidence does not support this assessment. A longitudinal review of the record discloses that following initial treatment in service, the appellant appears to have sought no further medical attention for his right jaw fracture. The service medical records are replete with references to ongoing treatment for other injuries he sustained in the same automobile accident in 1963 but no complaints are recorded with respect to the right mandible fracture. It should be emphasized that upon service discharge examination in August 1968, it was reported that there had been no complications or sequelae from that injury. The post service record is equally silent for any continuing residuals of right mandible fracture. Upon VA examination in 1990, it was noted that no jaw abnormality was observed or appreciated. It was reported that range of motion was apparently normal, and no evidence of fracture was revealed on X-ray. The Board notes in this instance that while the VA examination in February 1994 was not remarkable for any pointed indications of right mandible fracture symptoms or pathology, the current assessment of the evidence in this respect is based primarily on the more adequate 1991 VA examination. While it is now contended that nonunion of the mandible is present, the clinical evidence of record does not corroborate any such findings. No more than what may be characterized as slight subjective symptomatology is indicated. Absent clinical evidence which supports findings consistent with moderate displacement or disability, or definite limitation of motion, an evaluation of no percent is not warranted for the service-connected right ramus mandible fracture. The Board also finds that the evidence does not suggest that the service connected right ramus mandible fracture residuals present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We find that those sections do not provide a basis upon which to assign a higher disability evaluation in this regard. The Board has also considered the doctrine of benefit of the doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, a reasonable basis is not identified at this time for a grant of the benefit sought on appeal. ORDER An increased rating for right ramus mandible fracture residuals is denied. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.