Citation Nr: 1324291 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-04 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for cystic acne and seborrheic dermatitis of the face, back, and head. 2. Entitlement to higher initial ratings for left temporomandibular joint (TMJ) syndrome, evaluated as 10 percent disabling prior to June 10, 2009, as 20 percent disabling prior to March 27, 2012, and as 30 percent disabling from March 27, 2012. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from July 2000 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that in his January 2010 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran requested a hearing before the Board by live videoconference. Such hearing was scheduled for April 2013; however, the Veteran failed to appear for that hearing. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. In March 2010, prior to the promulgation of a decision in the appeal, the Veteran notified VA that he wished to withdraw his claim of entitlement a higher initial rating for cystic acne and seborrheic dermatitis of the face, back and head. 2. Prior to June 10, 2009, left TMJ syndrome was manifested by pain and inter-incisal motion between 31 to 40 mm and lateral excursion of more than 4 mm bilaterally; there is no evidence of loss, nonunion, or malunion of the mandible or impairment of the ramus, condyloid process, or hard palate. 3. From June 10, 2009 to March 26, 2012, left TMJ syndrome was manifested by pain and inter-incisal motion of 29 mm; there is no evidence of loss, nonunion, or malunion of the mandible or impairment of the ramus, condyloid process, or hard palate. 4. From March 27, 2012, left TMJ syndrome is manifested by pain and inter-incisal motion of 20 mm and lateral excursion of 4 mm; there is no evidence of loss, nonunion, or malunion of the mandible or impairment of the ramus, condyloid process, or hard palate. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to a higher initial rating for cystic acne and seborrheic dermatitis of the face, back and head by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Prior to June 10, 2009, the criteria for an evaluation in excess of 10 percent for TMJ syndrome have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.1 , 4.7, 4.40, 4.150, Diagnostic Codes 9900-16 (2012). 3. From June 10, 2009 to March 26, 2012, the criteria for an evaluation in excess of 20 percent for TMJ syndrome have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.1 , 4.7, 4.40, 4.150, Diagnostic Codes 9900-16 (2012). 4. From March 27, 2012, the criteria for an evaluation in excess of 30 percent for TMJ syndrome have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.1 , 4.7, 4.40, 4.150, Diagnostic Codes 9900-16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn the appeal with respect to a higher initial rating for cystic acne and seborrheic dermatitis of the face, back and head. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue. Evaluation of Left TMJ Syndrome The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In February 2008 the Veteran was provided with notice of the evidence necessary to support his claims for service connection. This notice included an explanation of the manner in which VA determines disability ratings and effective dates. At that time, he acknowledged that VA had notified him of the evidence or information necessary to substantiate his claim, the type of information and evidence VA would try to obtain, and what information and evidence he was required to provide to VA. The Veteran indicated that he had no other information or evidence to substantiate his claim, and requested that his claim be decided as soon as possible. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. The Board notes that this is a case in which the Veteran is challenging the initial evaluation assigned following the grant of service connection for his low back disability. In Dingess, the Court of Appeals for Veterans Claims 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. With respect to VA's duty to assist, service treatment records, VA treatment records, and private treatment records have been associated with the record. VA examinations were conducted. The Board finds that the examinations were adequate in that they were conducted by neutral, skilled providers who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing their conclusions. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether further staged ratings are warranted but finds that the disability is appropriately evaluated. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §4.10 (2012). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 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. 38 C.F.R. § 4.7. The Veteran's TMJ syndrome is evaluated pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9905 for temporomandibular articulation. Under this Diagnostic Code, a 10 percent rating is assigned for motion of inter-incisal range limited to 31 to 40 millimeters or when range of lateral excursion is 0 to 4 mm. A 20 percent rating is assigned for motion of inter-incisal range limited to 21 to 30 mm. A 30 percent rating is assigned for motion of inter-incisal range limited to 11 to 20 mm. A 40 percent rating is assigned for motion of inter-incisal range limited to 0 to 10 mm. Service treatment records reflect that the Veteran was assessed with TMJ syndrome during service. During VA examination in March 2008, the Veteran related that his jaw started to bother him in May 2002, and that at that time, he had difficulty opening his mouth. He reported that occasionally, he had to use his hand to manipulate his mouth so he could open it. On physical examination, the mandible was within normal limits. The maxilla was also within normal limits. Examination of the ramus and palates revealed no abnormal findings. Temporomandibular articulation was within a range of 31 to 40 mm. There was lateral excursion of more than 4 mm bilaterally. Examination of the teeth was within normal limits. Records of private treatment dated in June 2009 indicate that the Veteran was seen for left TMJ pain and popping. On examination, the Veteran had a vertical opening of 29 mm. He had external tenderness, pain on opening, and pain on right lateral movement. There were signs of bruxism. Medication and an orthotic appliance were recommended. On VA examination in March 2012, the Veteran's history was reviewed. The examiner noted that the Veteran had a vertical opening of 20 mm. Lateral excursion was to 4 mm. The examiner indicated that there was no fatigue or lack of coordination after five repetitions. He noted that there was no loss of mandible, maxilla, or hard palate. The diagnosis was myofascial pain dysfunction syndrome and mandibular hypomobility due to the myofascial pain. In a September 2012 addendum, the examiner indicated that repetitive motion did not produce additional decreased range of motion. Upon careful review of the record, the Board has determined that the currently assigned ratings are appropriate. For the period prior to June 10, 2009, the record reflects that the Veteran had inter-incisal motion within a range from 31 to 40 mm, and lateral excursion of more than 4 mm bilaterally. Such warrants a 10 percent evaluation. For the period from June 10, 2009 to March 26, 2012, the record reflects that the Veteran had inter-incisal motion of 29 mm, which warrants the currently assigned 20 percent evaluation. For the current period, beginning on March 27, 2012, the record reflects that the Veteran has inter-incisal motion limited to 20 mm. Such warrants the currently assigned 30 percent evaluation. The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating other dental and oral conditions. However, there is no evidence of mandibular dysfunction, or loss of ramus, condyloid process, mandible, or the hard palate which would warrant a higher evaluation under the criteria for evaluating such conditions. The Board accepts that the Veteran has experienced functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion to warrant the next higher evaluations for the periods considered. The Board therefore finds that the currently assigned evaluations are appropriate for the Veteran's TMJ syndrome. The Board notes that the Veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluations for the Veteran's TMJ syndrome are appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extraschedular Consideration Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted 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) (2012); see also 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 Veterans 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 level of disability and symptomatology and is found to be inadequate, the Board must then 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, 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 initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected TMJ syndrome. The medical evidence fails to demonstrate, at any time during the appellate period, symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's TMJ syndrome is specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Even still, the record does not show that the Veteran has required hospitalization, or has lost significant periods of work, due to his TMJ syndrome. In short, the evidence does not support the proposition that the Veteran's service connected asthma presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). ORDER Entitlement to an initial evaluation in excess of 30 percent for cystic acne and seborrheic dermatitis of the face, back, and head, is dismissed. For the period prior to June 10, 2009, an evaluation in excess of 10 percent for TMJ syndrome is denied. For the period from June 10, 2009 to March 26, 2012, an evaluation in excess of 20 percent for TMJ syndrome is denied. For the period from March 27, 2012, an evaluation in excess of 30 percent for TMJ syndrome is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs