Citation Nr: 1300405 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 11-12 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for residuals of a fractured mandible, left side, prior to May 2, 2012, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran, A.S. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from September 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for residuals of a fractured mandible, left side, and assigned a 10 percent disability rating effective October 9, 2009. An additional rating decision was promulgated in February 2010 which continued the assigned 10 percent disability rating. A Travel Board hearing was held in October 2011 with the Veteran in Cleveland, Ohio, before the undersigned Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) (West 2002) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. Subsequent to the aforementioned hearing, the Veteran submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). In March 2012, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. By an October 2012 rating decision of the Appeals Management Center (AMC), the disability rating assigned was increased to 30 percent, effective May 2, 2012. As the 30 percent disability rating is less than the maximum available rating, and as there remains a period of time during the appellate period wherein the 30 percent disability rating was not in effect, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In its remand, the Board found that the issues of entitlement to service connection for hearing loss, loss of balance, and chronic pneumonia, all to include as secondary to service-connected residuals of a fractured mandible, had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the Board did not have jurisdiction over the raised claims, the Board referred them to the AOJ for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). While the March 2011 Statement of the Case (SOC) discussed that the Veteran had a history of falls or balance problems and that there was no evidence that such was secondary to his service-connected residuals of a fractured mandible, a rating decision as to this issue, or to the other referred issues has not yet been issued. The Board thus refers again to the AOJ the issues of entitlement to service connection for hearing loss, loss of balance, and chronic pneumonia, all to include as secondary to service-connected residuals of a fractured mandible. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to May 2, 2012, the Veteran's service-connected residuals of a fractured mandible, left side, were manifested by pain, tenderness, the inability to eat hard foods, lateral excursion greater than 4 mm., and inter-incisal distance of 31 to 40 mm., without evidence of malunion of the mandible. 2. Since May 2, 2012, the Veteran's service-connected residuals of a fractured mandible, left side, are manifested by pain, tenderness, the inability to eat hard foods, lateral excursion greater than 4 mm., and inter-incisal distance functionally limited to 11 to 20 mm., without evidence of malunion of the mandible. CONCLUSIONS OF LAW 1. Prior to May 2, 2012, the criteria for an initial disability rating higher than 10 percent for service-connected residuals of a fractured mandible, left side, were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.59, 4.149, Diagnostic Code (DC) 9904, 9905 (2012). 2. Since May 2, 2012, the criteria for a disability rating higher than 30 percent for service-connected residuals of a fractured mandible, left side, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.59, 4.149, Diagnostic Code (DC) 9904, 9905 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Veteran was afforded sufficient VA examinations in December 2009 and May 2012. The Veteran has not indicated that he was seen regarding his disability by any provider or at any time other than the treatment reflected in the current records on file. Therefore, the Veteran's service treatment records and all identified and authorized post-service treatment records available and relevant to the issue on appeal have been requested or obtained. In this regard, the Board notes that at the time of the Veteran's Board hearing, he asserted that he underwent a VA examination in February 2010. One of his caregivers, also appearing before the Board, asserted that she attended the VA examination. A report of such examination is not associated with the physical claims file or Virtual VA. The Board, in its remand, sought a copy of the examination report. In a March 2012 letter, the AMC informed the Veteran that the VA examination report was not found and requested that he supplement the record with any relevant records in his possession. The Veteran has not responded. In a May 2012 Memorandum, VA issued a Formal Finding of Unavailability as to the February 2010 VA examination report. The Board cannot explain why the Veteran would have been scheduled for a VA examination in February 2010, three months subsequent to his December 2009 VA examination, nor can the Board explain why a copy of any VA examination report is not available. In any event, assuming that the Veteran indeed underwent VA examination in February 2010 and the report of which is unavailable, as such records are federal records, the Board is required to provide a heightened explanation of its findings and a careful consideration of the benefit of the doubt rule. 38 U.S.C.A. § 5107(b) (West 2002). The decision herein thus contains a heightened explanation of its findings and a careful consideration of the benefit of the doubt rule. However, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the the United States Court of Appeals for Veterans Claims (Court) declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Moreover, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Based upon the above, the Board finds that VA has satisfied its duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ did not note the basis of the prior determination or the elements that were lacking to substantiate the increased rating claim. The Veteran's representative and the VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did specifically seek to identify any pertinent evidence not currently associated with the claims file. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms during the appellate period. Accordingly, the Veteran is not shown to be prejudiced on this basis. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . Additionally, the Board finds there has been substantial compliance with its March 2012 remand directives. The Court has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC sought a copy of the February 2010 VA examination report and issued a subsequent Formal Finding as to its unavailability. The Veteran was afforded a sufficient VA examination in May 2012 and his claim was readjudicated by an October 2012 Supplemental Statement of the Case (SSOC). Thus, the Board finds substantial compliance with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. The Court has held that in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). By a December 2009 rating decision, the Veteran's residuals of a fractured mandible, left side, were initially rated as 10 percent disabling, effective October 9, 2009, under DC 9904, contemplating malunion of the mandible. By an October 2012 rating decision the disability rating assigned was increased to 30 percent, effective May 2, 2012, under DC 9905, contemplating limited motion of the temporomandibular articulation. DC 9904, used in rating malunion of the mandible, provides for a noncompensable disability rating where there is slight displacement of the mandible. A 10 percent disability rating is warranted for moderate displacement of the mandible, and a maximum 20 percent disability rating is warranted for severe displacement of the mandible. A Note to Diagnostic Code 9904 states that the rating is dependent upon degree of motion and relative loss of masticatory function. 38 C.F.R. §4.150, DC 9904. DC 9905, which pertains to limitation of motion of temporomandibular articulation, provides for a 10 percent disability rating when the range of lateral excursion is limited from 0 to 4 mm. or the inter-incisal range is limited to 31 to 40 mm. A 20 percent disability rating is applicable when the inter-incisal range is limited to 21 to 30 mm. A 30 percent rating is warranted when the inter-incisal range is limited to 11 to 20 mm., and a maximum 40 percent rating is assigned when the range is limited to 0 to 10 mm. A Note to Diagnostic Code 9905 states that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, DC 9905. In considering the applicability of other regulatory criteria, the Board finds that there is no evidence that the Veteran's residuals of a fractured mandible, left side, is manifested by chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, nonunion of the mandible, loss of any part of the maxilla, mandible, ramus, condyloid process, hard palate, or teeth, or malunion or nonunion of the maxilla. Thus DCs 9900-9903 and 9906-9916, contemplating the above-listed disorders, are not applicable in the present appeal and may not serve as bases for an increased rating. 38 C.F.R. § 4.150, DCs 9900-9903, 9906-9916 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2012). For traumatic arthritis, DC 5010 directs that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5010. While the Veteran's private physician, in a letter received in November 2011, reported that the Veteran has severe degenerative arthritis, including chronic jaw pain and thus appears to diagnose the Veteran with arthritis, the Veteran has demonstrated compensable limitation of motion of the jaw during the entire appeal, and further consideration of the criteria contemplating arthritis is thus not required. Private treatment records dated in December 2008 indicate that the Veteran complained of swelling behind the ears, with tenderness when touched. He reported that his jaw was broken in a remote accident. Clinical evaluation revealed left temporomandibular joint disorder with tenderness to palpation. The physician recommended conservative measures during exacerbations including a soft diet, no chewing gum, use of a heating pad, and three days of anti-inflammatory medication. Dental evaluation was recommended. During VA examination in December 2009, the Veteran complained of pain behind the left jaw for 10 years, and reported that he used analgesics to control his pain. He reported that a night guard prescribed by VA three years prior did not alleviate his symptoms. A stress test was performed, and after chewing two sticks of chewing gum for 15 seconds, the Veteran reported moderate pain in the left angle of the mandible. The examiner noted masticatory function loss due to adherence to a soft diet to avoid pain. Inter-incisal range of motion included 36.5 mm. of vertical motion; 7.5 mm. of left lateral motion; 7.0 mm. of right lateral motion; and 9.0 mm. of protrusive motion, with moderate pain in the left angle reported during mandibular movements. No bone loss was noted in the mandible, maxilla, or hard palate, expect where such had resorbed after tooth extraction. There was no need for a prosthesis for missing bone. Diagnostic testing revealed a left mandibular angle with two large bony spurs, and a thinned out cortical border of the left condylar head. Auscultation of the temporomandibular joints on the left was silent. Moderate sensitivity of pain to palpation was noted in the left lateral pole, left retrodiscal tissue, and left mandibular angle. The Veteran was diagnosed with moderate to severe left myofascial pain. In a statement received in April 2010, the Veteran's Notice of Disagreement (NOD), he asserted that he had severe displacement of the mandible with significant loss of motion, and a very hard time eating anything and was on a soft-food diet. At the time of his October 2011 Board hearing, the Veteran reported that he was told that he had arthritis and bone spurs in his jaw on VA examination in February 2010. He noted that his mouth does not open far enough, that he takes prescription medication three to four times daily, that his pain is rated seven or eight on a ten-point pain scale, six with pain medication; and that he has been unable to eat anything hard for the past three or four years. He reported that the first sip of water he takes causes pain. One of the Veteran's caregivers asserted that his diet and nutritional needs are closely monitored due to unrelated conditions. On VA examination in May 2012, the Veteran complained of flare-ups, and reported that his jaw hurts more when he chews hard food. He reported constant pain, bilaterally, not relieved by pain medication. He had a difficult time pinpointing the areas and intensity of pain, and described pain in the cheeks, zygoma, and distal part of the mandible, bilaterally. The Veteran demonstrated greater than 4 mm. of lateral excursion, without objective evidence of pain; and 21 to 30 mm. of inter-incisal distance, with objective evidence of pain beginning at 31 to 40 mm. The Veteran was able to perform repetitive use testing, and there was no change in his lateral excursion; however, his inter-incisal distance was limited to 11 to 20 mm., representing his functional loss or impairment. The examiner also noted that such included incoordination and impaired ability to execute skilled movements smoothly. There was localized tenderness or pain on palpation, without clicking or crepitus. There were no signs of malunion. Diagnostic testing specifically for arthritis was not conducted. The examiner reported that the Veteran's disability did not impact his ability to work. VA treatment records dated in June 2012 indicate that the Veteran complained of jaw pain and could open his jaw 3 cm., or 30 mm. While the RO initially rated the Veteran's disability under DC 9904, contemplating malunion of the mandible, there is no evidence of such. Butts, 5 Vet. App. 532, at 538. The VA examiner, in May 2012, specifically reported that there was no malunion, and there is no clinical evidence of malunion at any time prior to May 2, 2012. While the Veteran, in his NOD, asserted that he had severe displacement of the mandible, there is no evidence that the Veteran has the requisite clinical training or experience to determine whether his pain and limited motion were manifestations of malunion of the mandible. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions). When the RO assigned the initial 10 percent disability rating in the December 2009 rating decision under DC 9904 for malunion of the mandible with moderate displacement, it incorrectly reported that there was full movement of the jaw. As the Veteran demonstrated inter-incisal distance of 31 to 40 mm. on VA examination in December 2009, compensable limitation of motion under DC 9905, a more appropriate disability rating would have been 10 percent under DC 9905. 38 C.F.R. § 4.150, DC 9905. As there is no clinical evidence of malunion of the mandible, the Board finds that DC 9904 is not applicable in the present appeal and DC 9905, contemplating limited motion of the temporomandibular articulation, best represents the Veteran's symptomatology. Pernorio, 2 Vet. App. 625. Prior to May 2, 2012, as discussed above, the Veteran demonstrated greater than 4 mm. of lateral excursion and inter-incisal distance of 31 to 40 mm., as is required for a 10 percent disability rating under DC 9905. There is no evidence of greater limitation of motion. While the VA examiner, in December 2009, noted that the Veteran demonstrated moderate pain with mandibular movement, there is no evidence that such functionally limited his inter-incisal distance. 38 C.F.R. §§ 4.40, 4.45, and 4.59; see Mitchell, DeLuca, supra. Further, while the VA examiner, in December 2009, noted that the Veteran's adherence to a soft-food diet had created masticatory function loss, the examiner did not describe such as severe, and there is no evidence of severely limited motion. Thus, if the Board were to consider DC 9904 an applicable diagnostic code, there is no evidence of severe displacement of the mandible, considering the degree of motion and relative loss of masticatory function, as is required by DC 9904 for a 20 percent disability rating. Thus, DC 9905, the only applicable rating criteria, may not serve as a basis for an initial disability rating in excess of 10 percent prior to May 2, 2012. 38 C.F.R. § 4.150, DC 9905. Since May 2, 2012, as discussed above, the Veteran has demonstrated greater than 4 mm. of lateral excursion and inter-incisal distance of 11 to 20 mm., considering functional loss due to pain, as is required for a 30 percent disability rating under DC 9905. There is no evidence of greater limitation of motion. For the maximum 40 percent disability rating under DC 9905, evidence of inter-incisal distance of 0 to 10 mm. is required. The Board has considered that there is evidence of functional loss due to pain that warrants assigning a higher rating. On VA examination in May 2012, the Veteran demonstrated inter-incisal distance of 20 to 30 mm., with pain at 31 to 40 mm., further limited due to pain after repetitive testing of 11 to 20 mm. Such is the basis for the Veteran's 30 percent disability rating; however, there is no evidence that any pain limits the Veteran's function beyond that of inter-incisal distance of 11 to 20 mm. 38 C.F.R. §§ 4.40, 4.45, and 4.59; see Mitchell, DeLuca, supra. Thus, DC 9905, the only applicable rating criteria, may not serve as a basis for a disability rating in excess of 30 percent since May 2, 2012. 38 C.F.R. § 4.150, DC 9905. In sum, the Board has considered whether a higher disability rating might be warranted for any period of time during the pendency of this appeal. However, the weight of the credible evidence demonstrates that prior to May 2, 2012, the Veteran's residuals of a fractured mandible, left side, warrants no more than a 10 percent disability rating; and since May 2, 2012, such warrants no more than a 30 percent disability rating. As the preponderance of the evidence is against the Veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's residuals of a fractured mandible, left side, as such has been productive of pain, tenderness, and functional impairment; manifestations that are contemplated in the rating criteria. While the Veteran's representative, in a December 2012 Informal Hearing presentation, asserted that the Veteran is hospitalized on average three times each year due to pneumonia, caused by aspiration of food; such is not borne by the record. Pneumonia due to the aspiration of food has not been included in any discussion of relevant symptoms or difficulties. Record of private hospitalization for pneumonia in February 2006 is silent for any comment upon aspiration of food or jaw pain. There is no evidence that the Veteran has the requisite clinical training or experience to determine the etiology of his pneumonia. Woehlaert, 21 Vet. App. 456. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. The Board notes here that a raised claim of entitlement to service connection for chronic pneumonia, to include as secondary to service-connected residuals of a fractured mandible, left side, has been twice referred to the AOJ and is pending initial adjudication. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total disability rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, with respect to the Veteran's claim for an increased rating for his left jaw disability, the Board finds that a claim for a TDIU is not raised by the record. Specifically, the VA examiner, in May 2012, opined that the Veteran's jaw pain does not impact his ability to work, and the Veteran has not asserted otherwise. Therefore, the Board finds that no further consideration of a TDIU is warranted. ORDER An initial disability rating in excess of 10 percent for residuals of a fractured mandible, left side, prior to May 2, 2012, and in excess of 30 percent thereafter, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs