Citation Nr: 0000471 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-31 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a compensable evaluation for residuals of a fractured left ramus of the mandible. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from February 1960 to February 1963. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a November 1996 rating decision which denied entitlement to a compensable evaluation for residuals of a fractured left ramus of the mandible. In a March 1999 decision, the Board remanded the issue of entitlement to a compensable evaluation for residuals of a fractured left ramus of the mandible to the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO) for a hearing before a member of the Board. A hearing before a member of the Board was conducted in November 1999; thus, the case has now been returned to the Board for appellate consideration. The Board notes that at the time of the March 1999 remand, the status of the veteran's representation was unclear. At his November 1999 hearing before a member of the Board, the veteran testified that he no longer wanted to be represented by the American Red Cross and that he wanted to proceed without a representative. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The weight of the probative and competent evidence shows that residuals of a fractured left ramus of the mandible are manifested by moderate displacement of the mandible. CONCLUSION OF LAW A 10 percent evaluation is warranted for residuals of a fractured left ramus of the mandible. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.150, Diagnostic Code 9904 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records reflect that the veteran was hospitalized for 36 days in July 1962 for treatment of a simple fracture of the left mandibular condyle with no artery or nerve involvement. X-ray and clinical examination revealed a fracture of the mandibular condyle with moderate displacement. It was also noted that the veteran was unable to bring his teeth into proper occlusion. An infected and partially impacted wisdom tooth was also noted and surgically removed. VA clinical records dated in February and March 1970 reflect treatment for parotitis. VA clinical records dated from June 1995 to March 1996 are silent for complaints or treatment related to the mandible. Upon VA dental examination dated in October 1996, the veteran complained of biting his tongue and sores in his mouth. Upon physical examination, the examiner noted a maximal incisal opening of greater than 50 millimeters with no deviation on opening. The examiner also noted no myofascial pain, and no clicking or popping on opening and closing. The examiner also noted no soft tissue infections and no soft tissue swelling. A diagnosis of an asymptomatic temporomandibular joint was noted. At his November 1999 hearing before a member of the Board, the veteran testified that since his jaw was injured during military service he had been unable to use his jaw properly. The veteran also stated that he had to eat food that did not require much masticating because his mandible became tired. The veteran testified that the right side of his jaw gave him problems due to weakness. The veteran also stated that his jaw snapped free at will and caused him to bite his lip, tongue, and the insides of his mouth. (Transcript, page 4). The veteran testified that he currently had pain on one side when he closed his mouth. The veteran stated he could no longer eat hard food. (Transcript, page 5). The veteran also stated that his teeth did not come together at the same time and he often bit his lip. (Transcript, page 6). Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999). Malunion of the mandible is rated pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9904. Under that regulation, slight displacement of the mandible warrants a noncompensable evaluation. A 10 percent evaluation is warranted for moderate displacement and severe displacement warrants a 20 percent evaluation. It is noted that the rating is dependent upon the degree of motion and the relative loss of masticatory function. The words "mild" "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (1999). It should also be noted that use of terminology such as "mild" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1999). When there is a question as to which of two evaluations should be applied to a disability, 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 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). Analysis Following a careful consideration of the evidence of record, the Board concludes that a 10 percent evaluation for residuals of a fractured left ramus of the mandible is warranted. The veteran's service medical records at the time of the injury note moderate mandibular displacement and that the veteran was unable to bring his teeth into proper occlusion. Although the October 1996 VA dental examination was noted as essentially unremarkable, the veteran testified before a member of the Board that he had to eat food that did not require a lot of masticating, that he could not eat hard food, and that his jaw displacement often caused him to bite his tongue, lips, and the inside of his mouth. The Board realizes that the evidence is less than overwhelming. However, in light of the veteran's testimony of loss of masticatory function as well as the notation of moderate displacement in service, the Board concludes that the evidence more nearly approximates to a 10 percent evaluation. ORDER A 10 percent evaluation for residuals of a fractured left ramus of the mandible is granted, subject to controlling regulations affecting the payment of monetary awards. John E. Ormond, Jr. Member, Board of Veterans' Appeals