Citation Nr: 0813067 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-08 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased disability rating for residuals of post symphyseal and bilateral condylar fracture with temporomandibular joint dysfunction evaluated as 0 percent disabling prior to October 17, 2006, and 10 percent disabling thereafter. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served on active duty from July 1960 to April 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. FINDINGS OF FACT 1. Prior to October 17, 2006, the competent evidence of record demonstrates the veteran's temporomandibular joint was normal in all respects with vertical excursion greater than 50 mm and his right and left lateral ranges of motion were greater than 10 mm. 2. As of February 8, 2007, the competent evidence of record demonstrates the veteran's temporomandibular joint was limited at 35 mm for vertical excursion and his right and left lateral ranges of motion were unrestricted. CONCLUSION OF LAW 1. The criteria for an increased rating in excess of 0 percent prior to October 17, 2006 for residuals of post symphyseal and bilateral condylar fracture with temporomandibular joint dysfunction have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.150, Diagnostic Codes 9900-9916 (2007). 2. The criteria for an increased rating in excess of 10 percent as of October 17, 2006 for residuals of post symphyseal and bilateral condylar fracture with temporomandibular joint dysfunction have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.150, Diagnostic Codes 9900-9913 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). An August 2004 VCAA letter informed the veteran of his and VA's respective duties for obtaining evidence. The VCAA letter requested the veteran to provide any evidence in his possession and he was informed that it was ultimately his responsibility to ensure that VA received any evidence not in the possession of the Federal government. For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation (e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability). Vazquez-Flores at 43-44. In this case, the veteran was provided some of the pertinent information in the VCAA notice cited above. A higher rating under the diagnostic code for which the veteran was initially service connected will be satisfied by demonstrating a noticeable worsening or increase in severity of the disability. The veteran was informed of the necessity of providing on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily. The veteran was also informed of pertinent medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. However, the VCAA notice did not notify the veteran that, should an increase in disability be found, a disability rating would be determined by applying relevant Diagnostic Codes. Thus, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was completely satisfied subsequent to the initial AOJ decision by way of a letter sent to the veteran on February 2006 that fully addressed all notice elements. The letter informed the veteran of what evidence was required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in her or his possession to the AOJ. The letter also notified the veteran of the relevant diagnostic code used to determine an increased rating. Although the letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but also the AOJ readjudicated the case by way of the January 2007 supplemental statement of the case after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed in deciding this appeal as the timing error did not affect the essential fairness of the adjudication. With regard to the duty to assist, the claims file contains service medical records, VA treatment records, and a recent VA examination. Additionally, the claims file contains the veteran's statements in support of his claim. There is no indication in the file that there are additional relevant records that have not yet been obtained. Based on the foregoing, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. II. Merits of the Claim for an Increased Rating Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the veteran's favor. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet.App. 505 (2007). The veteran's residuals of post symphyseal and bilateral condylar fracture is rated 10 percent disabling pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9905. Limitation of motion of temporomandibular articulation is determined by measuring the distance between the top and bottom teeth when the jaw is opened (inter-incisal range), in millimeters, or by measuring the range of lateral excursion, in millimeters. Diagnostic Code 9905 assigns a 10 percent evaluation for inter-incisal range from 31 to 40 millimeters; a 20 percent evaluation for inter-incisal range from 21 to 30 millimeters; and a 30 percent evaluation for inter-incisal range from 11 to 20 millimeters. An evaluation of 10 percent is warranted when range of lateral excursion is 0 to 4 millimeters. Id. However, ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Id. Analysis The veteran filed a claim in August 2004 for an increased rating for his service-connected residuals of post symphyseal and bilateral condylar fracture disability. The RO denied an increased rating in the February 2005 rating decision. The veteran appealed this decision. During the pendency of this appeal, the RO increased the disability rating assigned to the veteran's disability from 0 percent to 10 percent under Diagnostic Code 9905, effective October 17, 2006. The Board will therefore consider whether the veteran is entitled to a higher disability rating under both stages of this appeal. Additionally, the Board has considered whether additional staging is appropriate. See Hart v. Mansfield, 21 Vet.App. 505 (2007). For reasons discussed in more detail below, the Board finds that the stages created by the RO are appropriate in light of the competent medical evidence of record and that there is no competent evidence that the veteran's service-connected disability underwent additional increases in severity during this appeal sufficient to warrant a higher evaluation (e.g., separate staged rating). A. Staged Rating Prior to October 17, 2006 The veteran was provided a VA dental and oral examination in October 2004. This examination referenced a history of trauma to the veteran's face with fractures in the subcondylar region on both the right and left sides and a fracture in the mandible or symphyseal region. The October 2004 examination showed that the veteran's temporamandibular joint (TMJ) was normal in all respects. The veteran had vertical excursion of greater than 50 mm and his right and left lateral ranges of motion were greater than 10 mm. The veteran exhibited no deviation from the midline upon opening or closing movements and auscultation of the joints revealed no joint sounds. The VA examiner noted that the subcondylar fractures were well healed with no adverse effects. The veteran does not meet the requirements for a higher rating under Diagnostic Code 9905 prior to October 17, 2006, because there is no competent evidence that the veteran's inter- incisal range was limited to 40 mm or less or his range of lateral excursion was limited to 4 mm or less. Therefore, an increased rating prior to October 17, 2006 is not warranted. B. Staged Rating As of October 17, 2006 The veteran was provided another VA examination in November 2006. The general TMJ assessment showed that the veteran had crepitus and limitations of opening due to the bilateral subcondylar fractures. The examiner noted that there was a loss of function due to numerous teeth missing secondary to neglect. The veteran showed a vertical excursion, which was somewhat limited at 35 mm. The veteran's right and left lateral ranges of motion were unrestricted. Auscultation of the joints revealed positive joint sounds and crepitus in both the right and left joints secondary to the subcondylar fractures. The VA examiner noted that the bone loss present in the jaw was secondary to periodontal disease and was not due to trauma. The veteran's vertical excursion was limited at 35 mm, and therefore, he meets the requirements under Diagnostic Code 9905, for a 10 percent rating, which requires a limited inter-incisal range of 31 to 40 mm. However, the veteran does not meet the requirements of a higher rating because the medical evidence of record shows that the veteran's inter-incisal is not limited to 30 mm or less. There is no competent medical evidence of record that indicates the veteran should receive a higher evaluation than 10 percent as of October 17, 2006 or thereafter. The U.S. Court of Appeals for Veterans Claims (Court) has held that evaluation of a service-connected disability involving a joint rated on limitation of motion, such as Diagnostic Code 9905, requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2007). The veteran showed crepitus in both the right and left joints in the October 2007 VA examination. However, there was no evidence showing additional loss of motion or function due to pain. Although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Thus, an evaluation rating higher than 10 percent disabling after October 17, 2006 is not warranted. C. Additional Considerations The Board has considered the applicability of other diagnostic codes. The veteran does not have osteomyelitis or osteoradionecrosis, malunion, nonunion, partial or complete loss of the mandible or maxilla, nor does he suffer from loss of the ramus, condyloid or coronoid processes, or hard palate. In addition, the veteran has not appealed the denial of his separate claim for loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity. Accordingly, diagnostic codes 9900-9904 and 9906-9916 for dental and oral conditions are not applicable in this case. See 38 C.F.R. § 4.150, DC 9900-9904, 9906-9916 (2007). The Board has also considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The evidence does not indicate that the veteran's residuals of post symphyseal and bilateral condylar fracture have caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Therefore, referral of this case for extra-schedular consideration is not warranted. See Floyd v. Brownž 9 Vet. App. 88, 95 (1996); Bagwell v. Brownž 9 Vet. App. 337 (1996). As the preponderance of the evidence is against the veteran's increased rating claim for residuals of post symphyseal and bilateral condylar fracture, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). ORDER Entitlement to an increased rating in excess of 0 percent prior to October 17, 2006, the service-connected residuals of post symphyseal and bilateral condylar fracture disability is denied. Entitlement to an increased rating in excess of 10 percent as of October 17, 2006, for the service-connected residuals of post symphyseal and bilateral condylar fracture disability is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs