BVA9500163 DOCKET NO. 93-06 262 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES The Board has construed the issues to be: 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for the loss of teeth ## 23, 24, 25, 26, and 30 due to trauma. 3. Entitlement to an increased (compensable) rating for left ear hearing loss. 4. Entitlement to an increased (compensable) rating for residuals of mandibular fractures. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from June 1970 to August 1990. This case comes to the Board of Veterans’ Appeals on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A decision in April 1992 granted service connection for left ear hearing loss, noncompensably disabling, but denied service connection for right ear hearing loss. That decision also granted service connection for residuals of a mandibular fracture, and assigned a noncompensable evaluation. A rating decision in December 1992 essentially denied service connection for the loss of the claimed teeth as due to trauma, and the supplemental statement of the case that same month effectively addressed the issue, as well. Therefore, this issue is properly before the Board at this time. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he has severe bilateral hearing loss which developed in service due to his exposure to noise while working near aircraft. In addition, he contends that he lost teeth ## 23, 24, 25, 26, and 30 at the time of his mandibular fractures during service, pointing out that it was not true that he wore a partial plate at the time of entry onto active duty, since he had never seen a dentist prior to service. He also asserted that his jaw disability warrants a compensable evaluation. 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 file. 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 evidence favors expanding the grant of service connection for the veteran’s jaw disability to include the loss due to trauma of teeth ## 23, 24, 25, and 26. However, the preponderance of the evidence is against a compensable evaluations for left ear hearing loss and for his jaw disability, and also against a grant of service connection for tooth # 30 due to trauma. The claim for service connection for right ear hearing loss is not well grounded. FINDINGS OF FACT 1. Teeth ## 23, 24, 25, and 26 were lost due to trauma during service. 2. Tooth # 30 was not lost due to trauma during service. 3. The veteran does not have a right ear hearing loss disability. 4. The veteran has level I hearing in his left ear. Service connection is in effect for hearing loss only in that ear. 5. The veteran’s mandibular fracture is well healed and non- displaced, with no loss of substance or continuity of the mandible; loss of masticatory surface due to missing teeth ## 23, 24, 25, and 26 is restorable by suitable prosthesis. CONCLUSIONS OF LAW 1. The veteran’s claim for service connection for right ear hearing loss is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107, 7105(d)(5) (West 1991). 2. The loss of teeth ## 23, 24, 25, and 26 due to trauma was incurred in active service; such loss is part and parcel of the service-connected residuals of mandibular fractures. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.381(e) (1993). 3. The loss due to trauma of tooth # 30 was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.381(e). 4. Left ear hearing loss is noncompensably disabling according to the schedular and extraschedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.85, and Part 4, Code 6100 (1993). 5. Residuals of a mandibular fracture, with the loss of teeth ## 23, 24, 25, and 26 due to trauma, are noncompensably disabling according to the schedular and extraschedular criteria. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.149, and Part 4, Codes 9904, 9913 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board finds that, as to each of the veteran’s claims except that for service connection for right ear hearing loss, he has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded; that is, the claims are not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). As will be discussed below, the claim for service connection for right ear hearing loss is not well grounded. Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claims, as mandated by 38 U.S.C.A. § 5107(a). Factual background The service medical records show that, on his preinduction- induction examination, audiometric testing revealed the following data: HERTZ (CYCLES PER SECOND) 500 1000 2000 3000 4000 Right 5 5 10 -- 5 Left 5 5 10 -- 5 Although the records do not reflect any complaints of hearing loss in either ear during service, a number of subsequent audiometric evaluations were conducted. While the results varied somewhat, pure tone thresholds for the right ear were always between 0 and 25 decibels at the frequencies of 500 to 4000 Hertz. Thresholds of 30 decibels were recorded at 2000 Hertz on two occasions, however. A preinduction examination was conducted in March 1970; the dental portion of that examination shows no indication of missing teeth. It was reported that the veteran's dental status was acceptable. The veteran denied ever having had tooth trouble. The service dental records show that at the time of the veteran’s induction, teeth ## 23, 24, 25, 26, and 30 were present. A hospital summary indicates that in July 1972 the veteran sustained fractures of the anterior and left aspects of the mandible. The summary of that hospitalization contains no reference to the absence of or involvement of any teeth in the injury. Maxillary and mandibular arch bars were applied for stabilization of mandibular fractures; the bars were removed in August 1972. The entry made at that time notes that teeth ## 23, 24, 25, and 26 had been traumatized and were surgically removed. Records of that time period make no mention of tooth # 30. In fact, the only reference to tooth # 30 in the dental records is an entry dated in July 1983, indicating that that tooth was missing and that all five teeth (## 23, 24, 25, 26, and 30) had been replaced by a partial denture. The reason for the absence of tooth # 30 was not provided. At the time of the separation examination, the veteran reported, over his signature, that in July 1972 he had broken is left jaw and had lost the bottom teeth in front of the mouth. At the time of the veteran’s separation examination in April 1990, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ (CYCLES PER SECOND) 500 1000 2000 3000 4000 Right 0 5 12 5 0 Left 0 5 20 15 5 A VA dental examination was conducted in September 1992. The veteran stated that his teeth had been "knocked out due to injury in service." The veteran also indicated that he had difficulty "incising" food. The examiner reported that teeth ## 23, 24, 25, 26, and 30 were missing, but that the veteran was wearing a partial. X-ray revealed an old fracture line in the mandible. The examiner further noted that the veteran’s teeth could be replaced with a fixed bridge or a partial. On a VA audiological evaluation in February 1992, pure tone thresholds, in decibels, were as follows: HERTZ (CYCLES PER SECOND) 500 1000 2000 3000 4000 Right 15 15 25 15 15 Left 20 20 35 40 35 Speech audiometry revealed speech discrimination ability of 96 percent in the right ear and of 92 percent in the left ear. Service connection for right ear hearing loss A claimant has an initial burden of submitting a well grounded claim. If he has not, his appeal must fail, and VA is not obligated to assist him in the development of the claim. 38 U.S.C.A. § 5107(a). The United States Court of Veterans Appeals (Court) has held that claims that are not well grounded must be dismissed by the Board. The Court has stated that: [a] veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. [citations omitted] If a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In other words, if a claim is not well grounded, the Board does not have jurisdiction to decide whether the benefit sought on appeal is warranted. Since a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, such a claim must be dismissed. 38 U.S.C.A. § 7105(d)(5). A threshold requirement for establishing service connection for a claimed disability is that the veteran must be shown to have the disability. Here, there is no medical evidence that the veteran currently has a right ear hearing loss disability. The service medical records show that the highest reported pure tone threshold in the right ear at frequencies of 500 to 4000 Hertz was 25 decibels, and that level was reported only once. Further, no service department examiner indicated that any right ear hearing loss was present during service. Neither do the service medical records reflect that there was any significant overall increase in those thresholds from the time of the veteran’s preinduction-induction examination in 1970 to his retirement examination in 1990. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 59 Feg.Reg. 60560 (1994) (to be codified at 38 C.F.R. § 3.385). The audiometric findings noted on the report of the VA examination in February 1992 do not meet the above criteria for establishing the presence of impaired right ear hearing. The recorded pure tone thresholds are considered to be within the range of normal hearing and the speech recognition score was 96 percent; for VA service connection purposes, the veteran has not been shown to have a right ear hearing loss disability. Therefore, because the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for right ear hearing loss is well grounded, that claim must be dismissed. Compensable evaluation for left ear hearing loss Modern pure tone audiometry testing and speech audiometry utilized in VA audiological clinics are well adapted to evaluate the degree of hearing impairment accurately. Methods are standardized so that the performance of each person can be compared to a standard of normal hearing, and ratings are assigned based on that standard. The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet.App. 345 (1992). Evaluations of unilateral defective hearing range from noncompensable to 10 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. In situations where service connection has been granted only for defective hearing involving one ear, and the veteran does not have total deafness in both ears, the hearing of the non-service-connected ear is considered to be normal. In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI. 38 U.S.C.A. § 1160(a); 38 C.F.R. § 4.85, Diagnostic Codes 6100, 6101. Inasmuch as service connection is in effect for only left ear hearing loss, and since the veteran is not deaf in his right ear, the right ear hearing acuity is taken to be normal (which it, in fact, is). For purposes of rating the veteran’s left ear hearing loss, then, a numeric designation of level I hearing is assigned for his right ear hearing. Also, a numeric designation of level I left ear hearing is to be assigned on the basis of the February 1991 audiometric data. Therefore, a mechanical application of the rating criteria results in the assignment of a noncompensable schedular evaluation for the veteran’s left ear hearing loss. In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran’s average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran’s disability level. There is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his left ear hearing loss, that would take the veteran’s case outside the norm so as to warrant an extraschedular rating. Accordingly, an increased (compensable) rating for left ear hearing loss is not warranted at this time. Service connection for loss of teeth due to trauma Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Satisfactory lay or other evidence that injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation during active service. 38 C.F.R. § 3.304 (1993). As to each noncompensable dental condition, a determination will be made as to whether it was due to trauma. 38 C.F.R. § 3.381(e). It seems reasonable to the Board that teeth ## 23, 24, 25, and 26 were injured by trauma at the time the veteran sustained his mandibular fractures in service and were removed shortly thereafter. Although the dental charts appear to show that these teeth were missing in June 1970, at induction, it appears more likely to the Board that these entries were made at a later date, in 1983. Other records do not suggest that these teeth were missing prior to the accident and the veteran himself has explained that he had never seen a dentist before entering service. The evidence on this point is in equipoise. Therefore, giving the benefit of any doubt to the veteran, service connection is established for the loss of those teeth due to trauma. However, there is no evidence in the record, other than the veteran’s own contentions, to indicate that tooth # 30 was lost due to trauma. The absence of mention of that tooth at the time of the surgical extraction of the other four teeth-and for several years thereafter-provides strong evidence against the veteran’s claim. No examiner, medical or dental, in service or since the veteran’s separation from service, has stated that tooth # 30 was lost due to trauma. In view of all the evidence, the Board cannot conclude that tooth # 30 was lost due to trauma. Service connection for that tooth due to trauma, then, must be denied. Residuals of fractured mandible and loss of teeth In light of the Board’s expansion herein of the grant of service connection for the veteran’s jaw disability to include the loss due to trauma of teeth ## 23, 24, 25, and 26, the Board’s analysis of this issue will include manifestations of the disability due to the loss of the noted teeth. In view of the nature of the disorder, and the fact that we have carefully considered all the veteran’s assertions regarding the level of his disability, we do not find that doing so will in any way prejudice him. In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran’s ability to engage in ordinary activities, to include employment. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. A compensable evaluation for malunion of the mandible requires at least moderate displacement of the mandible, as measured by the degree of motion in the remaining mandibular fragments and relative loss of masticatory function. Slight displacement warrants only a noncompensable evaluation. 38 C.F.R. Part 4, Code 9904. Under Code 9905, definite limited motion of the temporomandibular articulation, interfering with mastication or speech, warrants the assignment of a 10 percent rating. In instances of tooth loss, where the loss of masticatory surface can be restored by suitable prosthesis, a noncompensable rating will be assigned. A compensable evaluation may be assigned where the loss of masticatory surface cannot be restored by suitable prosthesis. Code 9913. A 10 percent rating may also be assigned where there is loss of one-half of the masticatory surface, for example, all lower or upper anterior teeth missing. The service medical records and the post-service VA dental examination report provide no evidence that the veteran’s mandibular fractures are other than well healed. The temporary appliances applied at the time of the initial injury in 1972 were removed approximately one month later. The service medical records are devoid of any reference to subsequent complaints relative to the fractures themselves. The VA compensation examination report indicates X-ray evidence of an old, healed fracture line. The Board finds that the veteran currently has no residuals of the in-service fractures, which produce such disability as to warrant assignment of a compensable rating. Accordingly, a compensable evaluation under the provisions of Diagnostic Code 9904 is not warranted. The recent VA examiner stated that the veteran was wearing a partial denture. In addition, it was concluded that the missing teeth could be replaced with a fixed bridge or a partial. It is clear, then, that a compensable rating cannot be assigned under the provisions of Code 9913, since the loss of masticatory surface can be restored. In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran’s average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran’s disability level. There is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his jaw disorder, that would take the veteran’s case outside the norm so as to warrant an extraschedular rating. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the veteran’s claim. Therefore, the Board concludes that a compensable rating for the veteran’s jaw disability is not warranted. (CONTINUED ON NEXT PAGE) ORDER The claim for service connection for right ear hearing loss is dismissed. An increased (compensable) rating for left ear hearing loss is denied. Service connection for the loss of tooth #30 due to trauma is denied. Service connection for loss of teeth ## 23, 24, 25, and 26 due to trauma is granted. An increased (compensable) rating for residuals of mandibular fractures with the loss of teeth ## 23, 24, 25, and 26 due to trauma is denied. N. R. ROBIN 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.