Citation Nr: 1308663 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 05-04 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to a service-connected left knee disability. 2. Entitlement to a compensable evaluation for capsulitis of the right temporomandibular joint (TMJ), myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture prior to January 3, 2011. 3. Entitlement to an evaluation in excess of 10 percent for capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture since January 3, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before a Veterans Law Judge at a March 2007 Travel Board hearing. A copy of that hearing transcript has been associated with his claims file. In a December 2008 decision, the Board remanded these issues for additional development. In June 2012, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in March 2007 was no longer employed at the Board and advising him that he had a right to a new hearing before another VLJ that would decide his case. See 38 U.S.C.A. § 7107(c) (West 2002) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). In a July 2012 correspondence, the Veteran indicated that he did not wish to appear at a hearing and he wished for his case to be considered by the evidence of record. In a February 2012 rating decision, the Appeals Management Center (AMC) granted an increased, 10 percent rating for capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture, effective January 3, 2011. Inasmuch as higher ratings for the disability are available before and after January 3, 2011, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized these issues as reflected on the title page. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In November 2012, the Board requested a Veterans Health Administration (VHA) medical opinion on the matter of service connection for a low back disorder, to include as secondary to a service-connected right ankle fracture. This January 2013 VHA opinion has been associated with the claims file and is now returned to the Board for review. FINDINGS OF FACT 1. The evidence of record favors a finding that the Veteran's low back disability is related to his service-connected left knee disability. 2. Since July 21, 2003, the Veteran's laxity of the right TMJ has been manifested by manifested by pain, popping, and inter-incisal opening to 32 mm but has not been productive of malunion of the mandible resulting in more than a moderate degree of displacement or nonunion of the mandible that is more than moderate in degree. CONCLUSIONS OF LAW 1. A low back disorder was caused or aggravated by his service-connected left knee disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for a 10 percent rating, but no higher, for right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture, have been met since July 21, 2003. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.3, 4.7, 4.31, 4.150, Diagnostic Codes 9904, 9905 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Given the favorable disposition of the claim for service connection for a low back disorder, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Regarding the Veteran's increased rating claims, the RO provided notice to the Veteran in a December 2010 letter that explained what information and evidence was needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the December 2010 letter, and opportunity for the Veteran to respond, the February 2012 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded VA examinations in June 2004 and January 2011. The Board finds these examination reports to be thorough and consistent with contemporaneous medical records. The examinations in this case are adequate upon which to base a decision with regards to this claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all 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 the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Entitlement to service connection for a low back disorder, to include as secondary to a service-connected right ankle fracture. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. at 448, see also 38 C.F.R. § 3.322 (2012). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, was amended during the course of the Veteran's claim and appeal. The intended effect of this amendment was to conform VA regulations to the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). However, given the possibility that these changes could potentially be interpreted as substantive, and because the Veteran's claim was pending before the regulatory change was made, the Board will apply the version of 38 C.F.R. § 3.310 that was in effect before the change, which arguably favors the claimant. Accordingly, the Board will evaluate the claimed disabilities, irrespective of any baseline. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran contends that his current back disability is the result of back injuries sustained in service to include wear and tear from repeated parachute jumps. The Veteran also contends that his current back disability was caused or aggravated by his service-connected right lower extremity disabilities, posttraumatic stress disorder (PTSD) and left knee disability. The Veteran personnel records reflect receipt of a Parachute Badge from his service from March 1973 to March 1977. The Veteran underwent a VA examination in June 2004. The Veteran reported that he hurt his back a few times from jumps in the Army and that he thought he had a back condition since 1977 or for 27 years. The examiner noted that the Veteran's separation examination was negative for abnormalities of the back. It was also noted that following service, the Veteran injured his back in a 1978 accident where he fell off of a tobacco loft. The examiner opined that given the Veteran's medical records, it was more likely than not that the Veteran's back pain had nothing to do with his in-service parachute jumping, but was instead due to the injuries he suffered after he was in the military. The Veteran again underwent a VA examination in December 2010. The Veteran reported back pain that he felt might be related to his in-service parachute jumps but he did not recall a specific injury to the spine during service. The Veteran had a current diagnosis of degenerative arthritis and disc disease of the lumbar and thoracic spine. After an examination of the Veteran and review of the claims file, the examiner opined that it was less likely than not the Veteran's current back disorders were either caused or worsened by the Veteran's service-connected right ankle fracture and/or his service-connected associated right leg shortening and limitation of right knee motion. The examiner noted that while the service treatment records mentioned treatment for back pain, the nature of the condition described there would have been unlikely to have resulted in ongoing symptoms or any other residuals. The current diagnoses pertaining to the thoracic and lumbar spine are more likely than not a result of the natural process particularly in light of no conditions described in the service treatment records, nor voiced by the Veteran that would reasonably have led to a specific etiology for these current spine conditions. Additionally, a review of the current medical literature did not provide a level correlating evidence that would support a nexus between the Veteran's current back disorders and his service-connected right ankle fracture or his service-connected associated right leg shortening and limitation of right knee motion. As noted in the November 2012 VHA request, the Board finds that the December 2010 VA examiner seems to be giving a negative nexus opinion regarding direct service connection and whether the Veteran's back disability was caused or aggravated by his service-connected right lower extremity disabilities. However, the opinion provided did not address whether the Veteran's current back disability was secondary to his service-connected PTSD or left knee disability. As a result of the incomplete December 2010 opinion, the Board requested an advisory opinion to be conducted by a VHA physician. In the January 2013 VHA advisory medical opinion, after a review of the Veteran's claims file, the physician determined that it was less likely than not that the Veteran's degenerative arthritis and disc disease of the lumbar spine was due to or aggravated by his service-connected PTSD. The VHA physician also opined that it was less likely as not that the Veteran's degenerative arthritis and disc disease of the lumbar spine was due to his service-connected less knee disability. He noted that the Veteran suffered a back injury in September 1978 when he fell from a loft in a barn. Although he recovered from the acute injury, such a fall would predispose him to earlier than normal onset of degenerative disease. A later lifting injury also would have aggravated. It was reasonable to conclude that the injuries shortly after his discharge were the most likely initiators of the Veteran's back condition. The onset then would have been prior to any gait disturbance from his service-connected knee condition making the knee condition unlikely to have been causative. The VHA physician however also concluded that it was at least as likely as not that the Veteran's degenerative arthritis and disc disease of the lumbar spine was aggravated by his service-connected left knee disability. He noted that it was apparent from the Veteran's records that the condition of his left knee has been progressive. The VHA physician opined that it was reasonable to conclude that the Veteran has had an abnormal gait for years secondary to his left knee and that this would tend to aggravate his lumbar spine condition. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a low back disorder as secondary to the Veteran's service-connected left knee disability is warranted. There are conflicting medical opinions on the question of whether the Veteran's current degenerative disc disease of his lumbar spine is secondary to his service-connected left knee disorder. The December 2010 VA examiner concluded that the Veteran's current diagnoses pertaining to the thoracic and lumbar spine are more likely than not a result of the natural process. However, the January 2013 VHA examiner concluded that it was at least as likely as not that the Veteran's degenerative arthritis and disc disease of the lumbar spine was aggravated by his service-connected left knee disability. Both examiners appeared to have an accurate picture of the Veteran's disability and history, and both provided a rationale for the conclusion offered. Notably, while the December 2010 VA examiner addressed direct service connection and service connection as secondary to the Veteran's service-connected lower right extremity disabilities, unlike the January 2013 VHA physician, he did not address whether the Veteran's service-connected left knee disability caused or aggravated the Veteran's low back disability. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the Board assigns the December 2010 VA examiner's opinions the least evidentiary weight. As noted above, while seemingly a negative opinion, the opinion provided did not address whether the Veteran's service-connected left knee disability caused or aggravated the Veteran's low back disability. To the contrary, the January 2013 VHA opinion which favors the claim is based on a review of the claims file, supported by rationale and phrased in a manner that allows the Board to understand the probability of a relationship between the Veteran's service-connected left knee disability and his low back disability. Accordingly, the Board finds that the January 2013 VHA opinion is most persuasive as to the matter at hand. In this regard, the Board has considered that the language used by January 2013 VHA physician was in terms that spoke to aggravation. Specifically, the January 2013 VHA physician noted that he was unable to express an opinion as to the degree of aggravation. However, as noted above, the Board evaluates the claimed disability irrespective of any baseline. For this reason, and having resolved doubt in favor of the Veteran, the Board finds the Veteran's claim for secondary service connection is adequately supported. 38 C.F.R. § 3.102. Thus, the benefit sought on appeal is granted on a secondary basis. 38 C.F.R. § 3.310. II. Entitlement to a compensable evaluation prior to January 3, 2011 and an evaluation in excess of 10 percent since January 3, 2011 for capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture. Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). Effective March 30, 1977, the Veteran has an initial noncompensable rating for laxity of the right TMJ, pursuant to Diagnostic Code 9904. In the February 2012 rating decision, the AMC granted an increased, 10 percent rating for capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion (previously diagnosed as residuals of a left mandible fracture) pursuant to Diagnostic Code 9904, effective January 3, 2011, the date of a VA examination evaluating this disability. Diagnostic Code 9904 provides ratings of 0, 10, and 20 percent for malunion of the mandible with displacement which is slight, moderate, and severe, respectively. 38 C.F.R. § 4.150, Diagnostic Code 9904. A note to this diagnostic code indicates that rating is dependent upon the degree of motion and relative loss of masticatory function. Diagnostic Code 9905 provides 10 percent ratings for lateral excursion from 0 to 4 mm. or for inter-incisal range of motion from 31 to 40 mm. Ratings of 20, 30, and 40 percent are warranted for inter-incisal range of motion from 21 to 30 mm., 11 to 20 mm., and 0 to 10 mm., respectively. 38 C.F.R. § 4.150, Diagnostic Code 9905. A note to this diagnostic code instructs that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. In July 2003, the Veteran filed a claim for an increased rating. The Veteran underwent a VA examination in April 2004. The Veteran reported a bilateral mandible fracture in 1975 which required his jaw being wired together. He had resultant pain on chewing, mostly on the right side, and occasional muscle spasms or closed lock of TMJ. His current symptoms were popping, cramps and sometimes difficulty eating. He also reported pains on chewing, headaches, neck pain and locking closed on chewing. The functional impairment was cramps and misalignment in addition to decreased chewing ability and pain. The condition did not result in any time lost from work and it was noted that the Veteran was not currently employed. On examination, his mandible and maxilla were within normal limits. Examination of the ramus and palates revealed no abnormal findings. Examination of the temporomandibular articulation revealed the inter-incisal motion within a range of more than 40mm. There was a range of right lateral excursion of more than 4mm. There was a range of left lateral excursion of more than 4mm. He experienced occasional click (reciprocal) on the right side. X-ray results were in normal limits. The diagnosis was capsulitis, right TMJ, myofascial syndrome and dysfunction, malocclusion. A January 2008 VA dental treatment report noted that the Veteran presented with complaints of pain several times a year to his left TMJ. When he had this pain, it would last several weeks before it went away. An oral examination revealed that the Veteran could not open his mouth to an average opening plus he had a mandibular deviation. He reported that he had a severe displacement of the mandible with loss of jaw motion. This affected his ability to eat food. The treating dentist noted that the Veteran did have difficulty opening and closing his mouth which would make it difficult for him to eat. The Veteran was scheduled for a VA examination in September 2009 but failed to report. A January 2010 VA dental note reported that the Veteran had no oral pathology. Since January 3, 2011, the Veteran's service connected capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture disability was evaluated during a January 2011 VA dental examination. He presented with complaints of difficulty eating due to limited mouth opening. He reported that he was in constant pain since he was hit in the face in 1975 and suffered his injury. He noted that his teeth had never seemed to come together like they did before he was hit. On examination, he had no pain to palpitation on his left and right masseter muscles, left and right temporalis muscles and his left and right medial pterygoid muscles. However, he did have pain on palpitation of his left and right lateral pterygoid muscles, more severe on the left side. His maximal opening was 32mm. His left and right excursive movements were 5mm. These movements were performed three times each and the Veteran had discomfort ad increased tightness of TMJ's after the range of movements. He was tender to palpitation on the left body of the mandible and both TMJs are tender to palpitation with the left being more tender than the right. Both TMJs were painful on opening and closing. There was no popping or crepitus on opening and closing of both TMJs. The Veteran reported his pain as 8/10. He additionally had some loss of pain sensitivity on the left lip mid line posteriorly. X-rays demonstrated a mandible that was well healed from fracture. There was some narrowing of the left condylar head. The remaining hard tissue was within normal limits. The diagnosis was no apparent displacement of the lower jaw. He did have TMJ/temporomandibular joint disorder (TMD) syndrome which was most likely caused by or a result of the trauma to the left mandible in September 1975. Because of this, his ability to eat has been compromised. Based on the Veteran's reports of having have difficulty opening and closing his mouth which would make it difficult for him to eat, the Board finds that a 10 percent disability is warranted for the period beginning on July 21, 2003, (the date of the Veteran's claim for increase) for moderate loss of masticatory function under Diagnostic Code 9904. Although the Veteran was found to have no limitation of motion of the mandible at the April 2004 VA examination, the Board finds that the 10 percent rating is warranted throughout the pendency of this appeal. In this regard, the April 2004 VA examination report reflects that movement of the mandible was accompanied by popping and pain. Moreover, the January 2008 VA treatment note indicated that the TMJ fluctuated in severity, which suggests that on some days it may be easier to open his mouth than on other days. Additionally, a January 2008 oral examination revealed that the Veteran could not open his mouth to an average opening plus he had a mandibular deviation which affected his ability to eat food. Therefore, giving the Veteran the benefit of the doubt, the Board finds that a 10 percent rating is warranted throughout the pendency of this claim. See 38 C.F.R. §§ 3.102; 4.3. However, the Board finds that a disability rating in excess of 10 percent is not warranted for any period of the claim. In this regard, the evidence does not reflect inter-incisal range of motion to 20 mm. or less; rather, the inter-incisal opening was to 32 mm on VA examination in January 2011. While the Veteran had limited range of lateral excursion, Diagnostic Code 9905 provides for a maximum rating of 10 percent for lateral excursion from 0 to 4 mm., and specifically instructs that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Thus, a rating in excess of 10 percent, pursuant to Diagnostic Code 9905, is not warranted. Consistent with DeLuca, the Board has considered the Veteran's functional loss due pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45. In this regard, to the extent that chewing is limited by pain, the disabling effects of pain have been taken into account in the assignment of his 10 percent rating. Additional functional impairment due to such factors as weakened movement, excess fatigability or incoordination is not shown. The Board, therefore, concludes that there is no basis for a rating in excess of 10 percent based upon 38 C.F.R. §§ 4.40, 4.45, 4.59. Moreover, no other diagnostic code provides a basis for assignment of a rating in excess of 10 percent for capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture, since July 21, 2003. In this regard, it is neither contended nor shown that the Veteran's service-connected capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture disability involves chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss or nonunion of the mandible, loss, malunion, or nonunion of the maxilla, loss of teeth due to loss of the substance of the body of the maxilla or mandible, or loss of the ramus, condyloid process, coronoid process, or hard palate. As such, consideration of the disability under Diagnostic Codes 9900 to 9903, 9906 to 9909, and 9911 to 9916 is not warranted. See 38 C.F.R. § 4.150, Diagnostic Codes 9900 to 9903, 9906 to 9909, 9911 to 9916. Under these circumstances, the Board finds that the criteria for assignment of a rating in excess of 10 percent for the Veteran's capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture, from July 21, 2003, are not met. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b) (1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 service-connected TMJ disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. The Board concludes that the preponderance of the evidence is against assigning a rating in excess of 10 percent for the Veteran's service-connected right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture disability. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Hart, supra. ORDER Entitlement to service connection for a low back disorder, to include as secondary to a service-connected right ankle fracture, is granted. Entitlement to a 10 percent evaluation for capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture since July 21, 2003, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an evaluation in excess of 10 percent for capsulitis of the right TMJ, myofascial syndrome and dysfunction, and malocclusion as residuals of a left mandible fracture since July 21, 2003, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs