Citation Nr: 1321291 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 10-37 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an increased disability rating (evaluation) in excess of 10 percent for residuals of a fracture of the right and left mandible with acute and chronic temporomandibular joint disease (TMJ), and irregular mandibular movements (a jaw disability). REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1985 to December 1985, and from January 1988 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In January 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, to afford the Veteran a VA examination of the service-connected jaw disability. The remand order was substantially complied with, and the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion of the RO's compliance with the January 2013 Board Remand is included in the Duties to Notify and Assist section below. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the Virtual VA system to ensure a complete assessment of the evidence. In this regard, a copy of the March 2013 supplemental statement of the case is located in the Veteran's file on Virtual VA. FINDING OF FACT For the entire rating period, the Veteran's jaw disability has been manifested by clicking and popping of the mandible, moderate displacement of the mandible with loss of masticatory function, greater than 40 millimeters (mm) of inter-incisal range of motion, and greater than 4 mm of lateral excursion. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a jaw disability are not met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.150, Diagnostic Codes 9904, 9905 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. A September 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including VA treatment reports and Social Security Administration (SSA) records, have been secured. The RO arranged for VA examinations in October 2008 and February 2013 (pursuant to the January 2013 Board Remand). To the extent that the Board found the October 2008 VA examination inadequate as no assessment of additional limitations of motion or function of the jaw was obtained, the fact that one part of a medical opinion may be inadequate (or arguably "insufficient") does not render the entire opinion "void," particularly with regard to the objective test results, such as displacement of the mandible with loss of masticatory function, and the Veteran's lay observations and reports offered contemporaneously with the examination. As such, these examinations, taken together, and with the limited purpose of using the Veteran's reports during the October 2008 VA examination and the October 2008 VA examination results of mastication interference and displacement of the mandible, are adequate for rating purposes. The February 2013 VA examiner reviewed the Veteran's medical history and complaints, made clinical observations and findings regarding the severity of the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). To the extent that the February 2013 examiner did not provide a basis for the conclusion that the deviation of the jaw cannot be attributed to the in-service accident, the objective findings of the February 2013 VA examination (as specifically requested in the January 2013 Board Remand) remain adequate. The claim was subsequently readjudicated in a March 2013 supplemental statement of the case; therefore, the Board finds that there has been substantial compliance with the January 2013 Board Remand order. See Stegall, 11 Vet. App. at 268; D'Aries v. Peake, 22 Vet. App. 97 (2008). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the U.S. Court of Appeals for Veterans Claims (Court) extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. The Board has reviewed all of the evidence in the Veteran's claims file, to include VA treatment reports in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Jaw Disability Rating Analysis Service connection for a jaw disability was granted in a December 1991 rating decision that assigned a noncompensable (0 percent) evaluation, effective the date of claim. In August 2008, the Veteran filed a claim for increased rating. In a March 2009 rating decision, the RO increased the rating for a jaw disability to 10 percent disabling. In February 2010, the Veteran entered a notice of disagreement with the 10 percent rating assigned. A statement of the case was issued in July 2010. The Veteran entered a substantive appeal in September 2010. The Veteran's jaw disability is currently evaluated at 10 percent disabling under the criteria found at 38 C.F.R. § 4.150, Diagnostic Code 9904, for malunion of the mandible. 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. A note to this diagnostic code indicates that rating is dependent upon the degree of motion and relative loss of masticatory function. As noted in the January 2013 Board Remand, the Veteran's jaw disability includes acute and chronic TMJ, so the Board must also consider 38 C.F.R. § 4.150, Diagnostic Code 9905. See Schafrath, 1 Vet. App. at 589. 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. A note to this diagnostic code instructs that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. The relevant evidence for this claim consists of the Veteran's lay statements and findings of displacement of the mandible with loss of masticatory function noted in the October 2008 VA examination report, and the VA examination dated in February 2013. VA treatment records note the Veteran's dental treatment, particularly treatment of his teeth, but do not include detailed information relevant to the jaw disability rating analysis under the applicable rating criteria. Such evidence is located in the VA examination reports. After a review of all the evidence, lay and medical, the Board finds that, for the entire appeal period, the Veteran's jaw disability has been manifested by clicking and popping of the mandible, moderate displacement of the mandible with loss of masticatory function, greater than 40 millimeters (mm) of inter-incisal range of motion, and greater than 4 mm of lateral excursion, which is consistent with the criteria for a 10 percent disability rating under Diagnostic Code 9904. The Veteran underwent a VA dental and oral examination in October 2008. At that time, he complained of clicking and popping of the mandible four to five times per day while eating. The examiner noted mastication interference due to pain in the temporomandibular joints and due to loss of teeth. There was also displacement of the mandible and the Veteran's mandibular midline was shifted one-half tooth to the right. The examiner also indicted that the Veteran had left-sided internal pterygoid muscle pain upon palpation, acute crepitation of the right mandibular condylar area, and moderate crepitation of the left mandibular condylar area. There was pain bilaterally upon palpation to the exterior surface of the face in the mandibular condylar region, and the mandible deviated to the left upon opening. The examiner's impression of the Veteran's condition was residuals of a fracture of the mandibular symphysis, acute and chronic TMJ, pain to the face and jaws, and irregular mandibular movements. Pursuant to the January 2013 Board Remand, the Veteran's service-connected jaw disability was evaluated during a February 2013 VA examination. There, the Veteran reported that "nothing hurts, I can eat anything I want," and that he did not have flare-ups that impacted the function of the TMJ. Upon physical examination, the range of motion for lateral excursion was greater than 4 mm with no objective evidence of painful motion, the range of motion for opening the mouth, measured by inter-incisal distance was greater than 40 mm with no objective evidence of painful motion. Following repetitive testing, there was no additional limitation in range of motion of either TMJ and no functional loss or functional impairment of either TMJ. The Veteran had no localized tenderness or pain on palpation of the joints or soft tissue, and had no clicking or crepitation of the joints or soft tissue. The examiner indicated that the Veteran's muscular skeletal defect is not a result of injury while in service as the Veteran reported that his entire family has the same feature. The examiner further noted that the deviation of the jaw on closing or opening to the left cannot be attributed to the in-service accident. Based on the findings of mastication interference and moderate displacement of the mandible in the October 2008 VA examination, the Board finds that a 10 percent disability rating is warranted for the period on appeal 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 February 2013 VA examination, and the examiner stated that the deviation of the jaw on opening or closing to the left cannot be attributed to the in-service accident, the Board finds that the 10 percent rating is warranted throughout the pendency of this appeal. In this regard, the proffered medical opinion (that the Veteran's jaw deviation is not attributed to the in-service accident) was not accompanied by any explanation or medical basis. Inadequate medical opinions include those that provide conclusions unsupported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr at 311; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 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 during any period on appeal. The evidence does not reflect inter-incisal range of motion to 30 mm or less; rather, the inter-incisal opening was greater than 40 mm on VA examination in February 2013. Indeed, the most recent evidence from the February 2013 VA examination revealed that the Veteran's jaw disability does not meet the criteria even for a compensable evaluation (based on the ranges of motion for temporomandibular articulation measured by inter-incisal range); consequently, the criteria for a rating in excess of 10 percent are necessarily not met. The weight of the evidence during the period on appeal does not show that inter-incisal range of motion is 30 mm or less; therefore, a rating in excess of 10 percent, pursuant to Diagnostic Code 9905, is not warranted for any period. Consistent with DeLuca and pursuant to the January 2013 Remand, 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, as discussed in the January 2013 Board Remand, the October 2008 VA examination is inadequate with respect to the ranges of motion of temporomandibular articulation as the examiner did not consider additional functional loss due to pain. To the extent that range of motion or function is now limited by pain, the Veteran did not report any pain upon joint movement during the February 2013 VA examination, and the disabling effects of masticatory function have been taken into account in the assignment of the 10 percent rating. Here, 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, even considering additional limitation of motion and function indicated under 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 the jaw disability. It is neither contended nor shown that the Veteran's service-connected jaw disability involves chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss or nonunion of the mandible, loss, malunion, or nonunion of the maxilla, or loss of the ramus, condyloid process, coronoid process, or hard palate. As such, rating of the disability under Diagnostic Codes 9900 to 9903, 9906 to 9909, 9911, 9912, and 9914 to 9916 is not warranted. See 38 C.F.R. § 4.150, Diagnostic Codes 9900 to 9903, 9906 to 9909, 9911, 9912, 9914 to 9916. In this regard, the loss of teeth due to loss of substance of the body of the maxilla or mandible without loss of continuity is rated under Diagnostic Code 9913. 38 C.F.R. § 4.150, Diagnostic Code 9913 (2012). Under Diagnostic Code 9913, 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, where the lost masticatory surface cannot be restored by suitable prosthesis, a 30 percent rating is warranted. A 20 percent rating is warranted for the loss of all upper and lower posterior or upper and lower anterior teeth. 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 assigned. The Note to Diagnostic Code 9913 indicates that 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, Diagnostic Code 9913 and Note (2012). The October 2008 VA examiner indicated that the Veteran had loss of teeth and periodontitis with mobility of teeth. Regardless of the Note in Diagnostic Code 9913, the VA examiner concluded that the Veteran's deteriorating oral condition is considered related to the fracture of the mandible. Here, the October 2008 examiner indicated that the Veteran had a loose maxillary full denture, which is marginally serviceable, and has a lower removable partial denture replacing teeth 18, 19, 23-27, 29, and 31. Significantly, the October 2008 examiner noted that teeth 1, 16, 17, and 32 are non-replaceable. The February 2013 examiner also noted that the Veteran had a full maxillary denture and a removable partial denture; the remaining teeth were 20, 21, 22, 28, and 30. While the October 2008 examiner indicated that four teeth (1, 16, 17, and 32) are non-replaceable, these teeth are the upper right third molar on the right side of the mouth in the upper (maxillary) jaw (tooth 1), the last molar back on the top left side (tooth 16), the lower left third molar (tooth 17), and the lower (mandibular) jaw up to the tooth farthest back on the bottom right side of the mouth (tooth 32). Simply stated, the last molar in each quadrant is non-replaceable. As such, the loss of teeth does not rise to a compensable level, and a rating in excess of 10 percent is not warranted. For these reasons, the Board finds that the preponderance of the evidence weighs against the assignment of an increased evaluation in excess of 10 percent for a jaw disability for the entire rating period. In this case, the Board does not find that the rating assigned should be increased for any other separate period based on the facts found during the appeal period. As a result, no staged rating is warranted. 38 C.F.R. §§ 4.3, 4.7; see Hart, 21 Vet. App. at 509 (recognizing the practice of "staged" ratings in increased rating claims). Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted. 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. 38 C.F.R. § 3.321(b)(1) (2012); 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 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the symptomatology and impairment caused by the Veteran's jaw disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 9904 and 9905, specifically provide for disability ratings based on moderate displacement of the mandible with loss of masticular function, including limitation of motion of temporomandibular articulation. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59; see also DeLuca at 202. In this case, considering the lay and medical evidence, a jaw disability has been manifested by clicking and popping of the mandible, moderate displacement of the mandible with loss of masticatory function, greater than 40 millimeters (mm) of inter-incisal range of motion, and greater than 4 mm of lateral excursion; these symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). The Board further considered the Veteran's functional limitations of clicking and popping of the mandible four to five times per day while eating. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of the Veteran's symptoms while chewing food, on his occupation and daily life. In the absence of exceptional factors associated with a jaw disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Moreover, the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Neither the Veteran nor the evidence suggests unemployability due to service-connected disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is service connected for traumatic brain injury, headaches associated with a traumatic brain injury, and a jaw disability. He has been unemployed since March 1991 due to paranoid schizophrenia, as evidenced by the September 1991 SSA Disability Determination. The February 2013 VA examination report indicated that the Veteran's jaw disability did not impact his ability to work; therefore, as the issue of individual unemployability due to service-connected disabilities is not reasonably raised by the record, it is not part of the rating appeal. ORDER An increased disability rating in excess of 10 percent for a jaw disability is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs