Citation Nr: 1306269 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 05-24 395A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for bronchial asthma. 2. Entitlement to an initial rating in excess of 10 percent for residual scars, fractured mandible. 3. Entitlement to an initial rating in excess of 10 percent for sensory loss, lower lip, 5th cranial nerve. 4. Entitlement to an initial rating in excess of 10 percent for temporomandibular joint (TMJ) disorder associated with residual scars, fractured mandible, prior to June 5, 2012. 5. Since June 5, 2012, entitlement to a rating in excess of 20 percent for TMJ disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The RO granted service connection for bronchial asthma and residual scars, fractured mandible. Both conditions were assigned 0 percent (noncompensable) ratings effective October 31, 2003. The matter was remanded by the Board in July 2008. Thereafter, a June 2009 rating decision granted service connection for TMJ disorder and assigned a 10 percent rating effective January 29, 2009. The matter was then remanded by the Board again in January 2010. In November 2011, the RO granted a separate 10 percent rating for sensory loss of the lower lip, 5th cranial nerve, a higher 10 percent rating for residual scars, and a higher 30 percent rating for bronchial asthma. These ratings were all effective from October 31, 2003. In March 2012, the Board denied a service connection claim for a bilateral leg disorder, and remanded the remaining matters. In a November 2012 rating decision, a higher 20 percent rating for TMJ disorder was assigned effective June 5, 2012. That, then, was a staging of the rating for this disability. In January 2013 correspondence, the Veteran's representative did not present further argument with respect to the TMJ claim, however it is presumed he is seeking the highest possible rating, absent any indication to the contrary. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed he is seeking the highest possible rating, absent express indication to the contrary). The case now returns to the Board for further review. FINDINGS OF FACT 1. The Veteran's bronchial asthma is not manifested by FEV-1 of 40 to 55 percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, at least monthly visits to a physician for required care of exacerbations; or, intermittent course of systemic corticosteroids. 2. The Veteran's residual scars are not manifested by more than one characteristic of disfigurement, do not cover an area greater than 39 sq. cm., and are not manifested by palpable tissue loss or gross distortion or asymmetry of any facial features. 3. The Veteran sensory loss, lower lip, 5th cranial nerve, is manifested by absent light touch sensation and decreased pinprick and vibration sensation; loss of motor function has not been demonstrated. 4. From October 31, 2003 to June 4, 2012, the Veteran's TMJ disorder was manifested by approximate inter-incisal range of motion from 35 to 40 mm. 5. From June 5, 2012, the Veteran's TMJ disorder was not manifested by less than 21 mm. of inter-incisal range of motion. 6. The Veteran's lost alveolar process and missing lower anterior teeth can be restored by suitable prosthesis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6602 (2012). 2. The criteria for an initial rating in excess of 10 percent for residual scars, fractured mandible, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7800 (2008). 3. The criteria for an initial rating in excess of 10 percent for sensory loss, lower lip, 5th cranial nerve have, not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8205 (2012). 4. The criteria for the 10 percent rating, but no higher, for TMJ disorder have been met even earlier, since October 31, 2003, the date of the claim, to June 4, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.150, Diagnostic Code 9905 (2012). 5. The criteria for a rating in excess of 20 percent for TMJ disorder have not been met from June 5, 2012. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.150, Diagnostic Code 9905 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Here, the Veteran is challenging the initial evaluations assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, in the Veteran's February 2005 notice of disagreement (NOD), he appealed the initial disability ratings assigned and is presumed to be seeking the maximum benefits available under the law for each appealed issue. Dingess; see also AB v. Brown, 6 Vet. App. 35 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a statement of the case (SOC) and additional supplemental statements of the case (SSOC), as well as a September 2008 letter, which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). B. Duty to Assist The Veteran's service treatment records, VA and private treatment records, RO hearing transcript, and lay statements have been associated with the claims file. The Veteran was also afforded VA examinations to reassess the service connected disabilities at issue here. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's service-connected disabilities on appeal. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Since as mentioned the Veteran's claims arise from his disagreement with the initial ratings assigned following the granting of service connection, some further discussion of the Fenderson case is warranted. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In Fenderson, the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of initial disability ratings where the disabilities in question have just been service connected. In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the Fenderson scenario, however, where, as here, the Veteran has expressed dissatisfaction with the assignment of the initial ratings, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" rating. Fenderson, 12 Vet. App. 125 -126. But see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (since expanding this concept even to claims for increased ratings that do not involve initial ratings). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). It is noted that where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). A. Bronchial Asthma The Veteran has been in receipt of a 30 percent rating for his bronchial asthma since October 31, 2003, pursuant to Diagnostic Code 6602. Under Diagnostic Code 6602, a 30 percent rating is warranted for Forced Expiratory Volume in 1 second (FEV-1) of 56 to 70 percent predicted; or, FEV-1/ Forced Vital Capacity (FVC) of 56 to 70 percent; or, daily inhalational or oral bronchodilator therapy; or, inhalational anti-inflammatory medication. 38 C.F.R. § 4.97, Diagnostic Code 6602. A 60 percent rating is warranted for FEV-1 of 40 to 55 percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, at least monthly visits to a physician for required care of exacerbations; or, intermittent (at least three per year) course of systemic (oral or parenteral) corticosteroids. Id. A 100 percent rating is warranted for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. Id. Evidence relevant to the severity of the Veteran's asthma includes an October 2003 private treatment records showing an assessment of shortness of breath, as well as a September 2004 private treatment record showing that the Veteran's asthma was treated with Singular and Advair. In November 2004, the Veteran was afforded a VA compensation examination. He reported treating his condition with Singulair, Advair, and Albuterol as needed. Pulmonary function testing (PFT) revealed FEV-1 of 84 percent, and a FEV-1/FVC of 75 percent. It was noted that the Veteran gave a suboptimal effort, but spirometry was essentially normal. A March 2005 private PFT revealed FEV-1 of 100 percent, and FEV-1/FVC of 100 percent. Interpretation was normal spirometry. In an October 2005 statement, the Veteran reported that breathing was especially difficult during periods of exertion, as well as extreme cold or hot and humid weather. He also felt "winded" after climbing a flight of stairs. He used Advair, Singulair, and Albuterol with increased frequency. The Veteran was treated for pneumonia in January 2007. In February 2007, the Veteran was prescribed a nebulizer for home use. In April 2007, he continued to complain of dyspnea on exertion and fatigue. In February 2009, the Veteran underwent an additional VA compensation respiratory examination. He reported treating his condition with a daily inhaled bronchodilator and anti-inflammatory medication. He also used an Albuterol nebulizer 2 to 4 times per day. He did not use steroids. He was treated with antibiotics once per year. He reported 3 or more acute attacks of asthma per week, and visited a clinic for exacerbations several times per year. He reported 1 day of incapacitation in the past year. He also experienced daily wheezing and dyspnea on exertion. PFT testing conducted in conjunction with the examination revealed a FEV-1 of 67 percent, and FEV-1/FVC of 75 percent. The examiner indicated that the Veteran's asthma had severe effects on sports activities. Exercise and recreation were moderately affected. Chores were mildly affected. The Veteran's condition also resulted in increased absenteeism at work. In March 2010, the Veteran was afforded another VA compensation respiratory examination. He reported treating his condition with a daily inhaled bronchodilator and anti-inflammatory medication. He also used an Albuterol nebulizer 2 times per day. He had also been treated with steroids for 1 week or less twice in a year. He was treated with antibiotics once per year. He reported acute attacks of asthma and clinical for exacerbations several times per year. He also experienced daily wheezing and dyspnea on moderate exertion. PFT revealed the following findings: FEV-1 was 92 percent. FEV-1 was noted to be 3.29, and FVC was 4.4, resulting in a FEV-1/FVC ratio of 75 percent. The examiner noted that the Veteran's asthma limited exercise and sports activities, as well as activity in cold weather. The Veteran underwent an additional VA compensation examination in July 2011 during which he reported that his symptoms are well-controlled, except when exposed to hot or cold air, or irritating dust or fumes. He treated his condition with an inhaled bronchodilator and inhaled anti-inflammatory. Steroids, immunosuppresives, and antibiotics were not used. He experienced wheezing several times per week, as well as dyspnea with moderate exertion. He had several clinical visits per year for exacerbations. Acute attacks occurred on a monthly but not weekly basis. PFT results (post bronchodilator) were: FEV1 of 3.66 (102 percent) and FVC of 4.85 (104 percent). The examiner noted that the Veteran had a chronic cough which made performing DLCO impossible. The examiner stated that for an obstructive condition like asthma, DLCO was not indicated as spirometry was the best indicator of pulmonary function and disability. The examiner did not provide the FEV1/FVC ratio. Thus, the Veteran was afforded an additional VA compensation examination in March 2012. He reported experiencing exacerbations of his asthma that did not require going for treatment. In the last year, he had not required the use of intermittent systemic oral or parenteral corticosteroids, though he did use a glucocorticosteroid twice per day as a maintenance medication. He had not had more than 1 asthma attack per week with respiratory failure. He had minor flare-ups about once every other month without respiratory failure. Typically, those flare-ups were 10 to 15 minutes in duration, and responded to 2 doses of a rescue inhaler and rest. He did not use any immunosuppressive medications or antibiotics. PFT results (post-bronchodilator) were: FEV-1 was 100 percent and FEV-1/FVC was 103 percent. Based on this evidence, the Board finds that a rating in excess of 30 percent for bronchial asthma is not warranted. As noted above, a higher rating of 60 percent based on PFT findings requires FEV-1 or FEV-1/FVC of no more than 55 percent. At worst, FEV-1 was 67 percent during the February 2009 examination. All other PFT findings resulted in higher scores. Moreover, while the Veteran was treated with steroids, the evidence does not demonstrate that such treatment rose to the level of 3 courses of systemic oral or parenteral treatment within a year as outlined in criteria for a higher 60 percent rating under Diagnostic Code 6602. Finally, the Veteran reported that he sought treatment by a physician several times per year for exacerbations of his condition. However, the higher 60 percent rating contemplates such visits on at least a monthly basis; that level of frequency has not been demonstrated. In sum, the evidence does not show that the Veteran's bronchial asthma results in symptoms which result in an overall level of disability consistent with a higher 60 percent rating. The Board has considered the Veteran's use of daily bronchodilators and anti-inflammatories, as well as his reports of wheezing, dyspnea on exertion, and difficult with hot or cold weather. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In deciding this claim, the Board has duly considered the Veteran's reports respiratory difficulty. He is competent to report statements such a shortness of breath or wheezing because they are observable symptoms, and do not require medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not however competent to identify a specific level of disability of respiratory disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected asthma has been provided by VA medical professionals who have examined him during the current appeal. The medical findings directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be the only competent and probative evidence of record, and thus, are accorded greater weight than any of the Veteran's subjective evidence of complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In sum, the competent medical evidence does not establish that the Veteran's disability picture meets the criteria necessary for an initial rating in excess of 30 percent for bronchial asthma. No staged ratings are warranted. The initial increased rating claim for bronchial asthma is therefore denied. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's asthma is inadequate. As noted above, the Veteran's asthma is evaluated by mechanically applying the rating schedule to PFT results. The Board finds that the level of severity of the Veteran's asthma is adequately contemplated by the applicable diagnostic criteria. Specifically, the Veteran's PFT results, medication use, and frequency of treatment are all specifically contemplated by Diagnostic Code 6602. Although the criteria provide for a higher rating, the 30 percent rating already assigned is still reflective of the severity of his asthma. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, referral for consideration of extraschedular rating is not warranted. B. Residual Scars, Fractured Mandible The Veteran is currently assigned an initial 10 percent rating under Diagnostic Code 9903-7800 for residual scars, fractured mandible. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. During the pendency of this appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008. However, it was specifically noted that this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A Veteran whom VA rated before such date under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates. See 73 Fed. Reg. 54708 (Sept. 23, 2008). In this case, the Veteran's claim was filed prior to October 23, 2008, and he has not requested consideration under the revised rating criteria. Therefore, the Board will consider his claim under the former criteria. Under 38 C.F.R. § 4.118, Diagnostic Code 7800, for disfigurement of the head, face, or neck, Note (1) states that the 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper- pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). With one characteristic of disfigurement, a 10 rating is warranted under DC 7800. With visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, a 30 percent rating is warranted. With visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, a 50 percent rating is warranted. With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, an 80 percent rating is warranted. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2012). Evidence relevant to the severity of the Veteran's residual scar on the mandible includes a VA compensation examination report dated in November 2004. Such report noted a 55 mm. scar in the left submandibular region with multiple small scars above the supramental fold hidden by the Veteran's beard. In an August 2005 statement, the Veteran reported that facial scarring was not a concern for him. In January 2009, the Veteran underwent a VA dental consultation. Examination revealed a 27 mm. scar under the right side of the chin, a 58 mm. scar retracted scar on the right side of the neck, a 22 mm. horizontal scar below the lower lip, and a 10 mm. scar extending vertically onto the lower lip. There was no functional impairment due to loss of motion and masticatory function loss. Another VA compensation examination was conducted in July 2011. The Veteran had a deep scar adherent to underlying tissue just below the lower lip. It was 3 cm. long and .3 cm. wide. A second scar was located on the left side of the neck below the mid-mandible. It was 5 cm. long and .2 cm. wide, and described as superficial and not adherent to underlying tissue. A third scar was located on the right upper neck below the mid-mandible. It was 2.5 cm. long and .2 cm. wide. It was superficial and not adherent to underlying tissue. None of the scars had any associated pain, inflammation, skin breakdown, keloid formation, pigmentation abnormalities, indurated or inflexible skin, elevation, or depression. Color photographs of the Veteran's scars were also associated with the claims file and have been reviewed. A VA compensation dental examination conducted in June 2012 noted that none of the Veteran's scars were painful or unstable, and collectively did not affect an area greater than 39 sq. cm. Based on this evidence, a rating in excess of 10 percent is not warranted for scars, residuals of mandible fracture. In this regard, these scars are manifested by only one characteristic of disfigurement. Specifically, the Veteran has a deep scar adherent to underlying tissue just below the lower lip. The remainders of his scars do not possess any of the characteristics of disfigurement, and the total area of the Veteran's scars is not greater than 39 sq. cm. Moreover, a review of the evidence, including the color photographs, does not demonstrate any palpable tissue loss or gross distortion or asymmetry of any facial features. There is also no pain or functional loss associated with the Veteran's scars, and the Veteran himself stated that he was not concerned with them. Therefore, the criteria for a higher rating for the Veteran's residual scars are not met. The Board acknowledges that the Veteran, as a layman, is competent to report the existence of his skin symptoms. See Layno, supra. However, the Veteran does not currently report any specific symptoms related to his scars. In fact, as mentioned, he reports that the scars do not bother him. At any rate, as a layman, the Veteran, without the appropriate medical training and expertise, is not competent to provide an opinion on a medical matter, such as the severity of his service-connected residual scars. The competent medical evidence concerning the nature and extent of the Veteran's service-connected scars has been provided by VA medical professionals who have examined him during the current appeal. These medical findings directly address the criteria under which this disability is evaluated and are accorded great probative weight. Based on the foregoing, the Board concludes that an initial rating in excess of 10 percent for residuals scars, fractured mandible, is not warranted. The Board notes further that the evidence does not show such an exceptional disability picture that the available schedular rating for his residuals scars is inadequate. A comparison between the level of severity and symptomatology of the Veteran's residual scars with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. There is no indication that the Veteran's condition results in symptoms or limitations that fall so far outside the rating schedule as to render it inadequate. Referral for consideration of extraschedular rating is not warranted. C. Sensory Loss, Lower Lip The Veteran is currently assigned an initial 10 percent rating under Diagnostic Code 8205 for sensory loss, lower lip, 5th cranial nerve, which provides that incomplete, moderate paralysis of the cranial nerve is assigned a 10 percent rating. Incomplete, severe paralysis of the cranial nerve is assigned a 30 percent rating. Complete paralysis of the cranial nerve is assigned a 50 percent rating, the highest possible under this Code. 38 C.F.R. § 4.124a, Diagnostic Code 8205. Terms such as "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" and "severe" by VA examiners or other physicians, 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. Turning now to the relevant evidence, a November 2004 VA examination noted paresthesia of the lower lip, with no additional comments. In an August 2005 statement, the Veteran reported that he had minimal sensation in his lower lip or chin. During a January 2009 VA compensation examination, the Veteran reported swelling and numbness in his upper lip. His lower lip often cracked on the right side, especially in cold weather. On examination, both lips were dry and cracking. However, no specific findings were recorded with respect to neurologic findings such as sensation. The Veteran underwent a VA examination in July 2011. A separate opinion stated that the Veteran had sensory loss related to his lower teeth which penetrated the area below the lower lip. Sensation was absent to light touch and decreased to pinprick and vibration above the scar located below his lower lip. The examiner noted that this involved the entire lower lip, though there was no loss of motor function. A June 2012 VA examination noted paresthesia of the lower lip. Based on this evidence, a disability rating in excess of 10 percent is not warranted for sensory loss in the lower lip. Although trauma to the mandible area can cause injury to the 5th cranial nerve, in the Veteran's case, there are no symptoms of nor physical findings of injury to either left or right mandibular segments of the 5th nerve, as noted by the July 2011 VA examiner. Instead, the Veteran has absent light touch and decreased pinprick and vibration above the scar located below the lower lip. Notably however, there is no loss of motor function. Taken as a whole, the evidence does not show that the Veteran's paralysis rises to the level of severe incomplete paralysis to warrant a higher 30 percent rating under Diagnostic Code 8205. The Veteran is competent to report loss of sensation, as it is an observable symptom. However, he is not competent to provide a medical opinion as to the severity of his sensory loss, lower lip. In sum, the Board concludes that an initial rating in excess of 10 percent is not warranted for sensory loss of the lower lip. The Board has again considered whether an extraschedular rating is warranted. However, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's lower lip sensory loss is inadequate. A comparison between the level of severity and symptomatology of the Veteran's condition with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. There is no indication that the Veteran's condition results in symptoms or limitations that fall so far outside the rating schedule as to render it inadequate. D. TMJ Disorder The RO assigned the Veteran's TMJ disorder a 10 percent rating under Diagnostic Code 9905 from January 29, 2009, and a 20 percent rating from June 5, 2012. Under Diagnostic Code 9905, a 10 percent rating is warranted when inter-incisal range of motion is from 31 to 40 mm; 20 percent from 21 to 30 mm; 30 percent from 11 to 20 mm, and 40 percent from 0 to 10 mm. Also, limited motion of lateral excursion from 0 to 4 mm warrants a 10 percent evaluation. 38 C.F.R. § 4.150, Diagnostic Code 9905. Evaluation of a service-connected disability involving a joint rated on limitation of motion 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998). Diagnostic Code 9913 establishes a disability evaluation for tooth loss due to loss of substance of the body of the maxilla or mandible without loss of continuity. Where the lost masticatory surface cannot be restored by a "suitable prosthesis," a maximum 40 percent disability rating is warranted for the loss of all teeth. For the loss of all upper teeth or all lower teeth, a 30 percent rating is warranted. For the loss of all upper and lower posterior or upper and lower anterior teeth, a 20 percent rating is warranted. For the loss of all upper anterior or lower anterior teeth, or for the loss of all upper and lower teeth on one side, a 10 percent rating is warranted. Where the loss of masticatory surface can be restored by suitable prosthesis, a noncompensable (0 percent) rating is warranted. These ratings apply to bone loss through trauma or disease, such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, because such loss is not considered disabling. 38 C.F.R. § 4.150 (2012). Turning to the relevant evidence, the Veteran underwent a VA examination in November 2004. The examiner noted that wide opening of the mouth caused popping and subluxation. Inter-incisal range of motion was 50 mm to the alveolar ridge. There was bone loss on the anterior mandibular alveolar ridge. The Veteran testified at an RO hearing in June 2005. With respect to the then-current symptoms, he reported difficulty chewing. He had to be very careful when yawning because of incidents in which his jaw would lock open. He also experienced clicking and popping with repeated use, such as talking or eating. He reported similar symptoms to his private physician in June 2005, as well as in an August 2005 statement. The Veteran was afforded another VA examination in January 2009. He reported daily jaw pain and occasional clicking and popping. His mouth sometimes locked open when he yawned. Pain was rated as 2/10 or 3/10 in the morning, reached 6/10 to 8/10 by the end of the day. He treated his condition with medication. On examination, both TMJs were tender to palpation. He reported acute pain on the right side with moderate pressure over the head of the right condyle. Crepitus was present bilaterally. The Veteran was able to open his mouth comfortably to 30 mm., and could open to 34 mm. with encouragement. The examiner also noted that while the Veteran was able to open to 50 mm. during a November 2004 examination, the missing mandibular incisors and alveolar process would typically extend 10 mm. to 15 mm. in a patient such as the Veteran. There was no loss of bone of the mandible, maxilla, or hard palate. That alveolar bone which supported the mandibular incisors, canines, and left premolars had been lost. This loss was stable when compared to the November 2004 findings. The examiner attributed this loss to either the Veteran's 1976 trauma, the surgical repair of that injury, or the normal resorption of the edentulous and poor fit of the thirty year old partial denture. An additional examination was conducted in June 2012. The examiner noted that the Veteran has loss of the alveolar process of the mandible involving teeth 21 through 29. There was no malunion or nonunion of the mandible. The loss of teeth was due to the loss of the alveolar process, and involved all lower anterior teeth. However, the masticatory surface could be restored by a suitable prosthesis. There was no loss of the maxilla or hard palate. The Veteran also had masseter muscle fatigue with wide opening. Lateral excursion range of motion, even when factoring in painful motion, was greater than 4 mm. Inter-incisal distance was 31 to 40 mm., limited by pain and spasm to 21 to 30 mm. Range of motion was unchanged following repetitive testing, though the Veteran experienced weakened movement, fatigability, and incoordination on both sides. Tenderness to palpation and crepitus were present on the left side. Having reviewed the evidence, the Board finds that the 10 percent rating initially assigned by the RO for TMJ should be effective even earlier pursuant to Diagnostic Code 9905. Notably, the Veteran had popping and subluxation upon wide opening during the November 2004 examination. Though at that time, the VA examiner indicated that inter-incisal range of motion was 50 mm, the January 2009 VA examiner explained that the Veteran's missing incisors and alveolar process would account for 10 to 15 mm of the 50 mm. measured in 2004. Therefore, an accurate measurement of inter-incisal range of motion would actually be 35 to 40 mm., which is consistent with a 10 percent rating under Diagnostic Code 9905. In light of this interpretation, the Board finds that the 10 percent rating initially assigned should be assigned even earlier, from the date of the claim. The Board finds that the 10 percent rating contemplates any functional impairment that the Veteran experiences on account of his TMJ. Moreover, VA examinations and other treatment records do not reflect inter-incisal range of motion of 30 mm. or less prior to June 5, 2012. Range of motion was at least 35 mm. in November 2004, and 34 mm. in 2009. As such, the Board concludes that the 10 percent rating, but no higher, for TMJ disorder should be assigned since October 31, 2003. As mentioned, the Veteran's TMJ disorder was assigned a 20 percent rating from June 5, 2012. However, applying the rating criteria to the applicable evidence since then, the Board finds that a rating in excess of 20 percent is not warranted. Inter-incisal range of motion on June 2012 VA examination was noted to be limited by pain and spasm to at least 21 mm. Nonetheless, a higher 30 percent rating requires 20 mm. or less, and that has not been shown. The Board has also considered whether Diagnostic Code 9913 could provide for a higher rating. In this regard, the central issue is whether the Veteran's lost masticatory surface can be restored by a "suitable prosthesis" in the lower mandible. However, the June 2012 VA examiner specifically stated that the lost surface could be restored by a suitable prosthesis. As they are replaceable, they do not meet the schedular criteria for a compensable rating. Therefore, a higher rating either prior to, or since June 5, 2012, for the Veteran's lost alveolar process and missing lower anterior teeth is not warranted. In this case, the Veteran is competent to report symptoms of locking, pain, and his account of symptomatology is consistent with the assigned ratings. In sum, the Board concludes that the 10 percent rating for TMJ disorder should be assigned earlier from October 31, 2003, but since June 5, 2012, a rating in excess of 20 percent is not warranted. The Board has again considered whether an extraschedular rating is warranted. However, the evidence in this case does not show such an exceptional disability picture that the available schedular rating for the Veteran's TMJ disorder is inadequate. The Veteran's TMJ symptoms are contemplated in the applicable rating criteria. There is no indication that the Veteran's condition results in symptoms or limitations that fall so far outside the rating schedule as to render it inadequate. Referral for extraschedular consideration is not warranted. ORDER An initial rating in excess of 30 percent for bronchial asthma is denied. An initial rating in excess of 10 percent for residual scars, fractured mandible, is denied. An initial rating in excess of 10 percent for sensory loss, lower lip, 5th cranial nerve, is denied. The 10 percent rating, but no higher, for TMJ disorder is granted earlier from October 31, 2003, to June 4, 2012, subject to the laws and regulations governing the award for monetary benefits. Since June 5, 2012, a rating in excess of 20 percent for TMJ disorder is denied. ___________________________________________ S. B. Mays Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs