Citation Nr: 1329190 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-12 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable rating for temporomandibular joint disease prior to January 6, 2009. 2. Entitlement to an initial compensable rating for residuals of left wrist fracture with scar prior to January 14, 2009. 3. Entitlement to an initial compensable rating for cervical strain (claimed as cervical spine and chronic neck conditions) prior to January 14, 2009. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 2006. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. By rating action of March 2009, increased ratings were assigned for the service connected temporomandibular joint disease, residuals of a left wrist fracture, and a cervical spinal disorder. The action had the result of assigning a combined 60 percent rating. Effective dates were made in January 2009, the date of examinations reportedly showing the increased in symptoms. The Veteran submitted a substantive appeal indicating that he was satisfied with the combined rating, but thought the increases should have taken effect from an earlier time. The earlier effective date issue was certified to the Board, and the representative made a presentation on that issue, but it was never the subject of a statement of the case. There was a statement of the case issued on the issues on the title page. In view of the actions taken below, the claim will be essentially granted, so further procedural correction is not indicated. It is noted that the Veteran has recently filed for increased ratings for several disorders. Development is ongoing, and those matters are not currently before the Board. FINDINGS OF FACT 1. Prior to January 6, 2009 temporomandibular joint disease was, more likely than not, manifested by an inter-incisal range of 11 to 20 mm but not an inter-incisal range of 0 to 10 mm. Service records revealed clicking of the joint and use of appliances. 2 Prior to January 14, 2009, residuals of left wrist fracture were more likely than not manifested x-ray evidence of residuals of a fracture, weakness and limitation of motion. 3 Prior to January 14, 2009, cervical spine strain was more likely than not manifested by limitation of motion, with straightening of the cervical spine with mild reversal of the curvature and possible positional versus spasm. There was evidence of degenerative changes. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor the criteria for an initial 30 percent rating for temporomandibular joint disease as of December 1, 2006 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.150, Diagnostic Code 9905. 2 With resolution of reasonable doubt in the appellant's favor, the criteria for an initial 10 rating for residuals of left wrist fracture as of December 1, 2006, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5020-5215. 3. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial 20 percent rating for cervical spine strain as of December 1, 2006, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in February 2007, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, and VA examinations. Virtual VA documents have also been reviewed. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Further, given that the action herein essentially satisfies the appeal as to the certified issue, there is no additional development or notice indicated. ANALYSIS Disability evaluations 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 his 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. 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re- evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. FACTUAL BACKGROUND In pertinent part, it is noted that the Veteran was discharged from service the end of November 2006. He promptly filed a claim for VA benefits, and the disorders at issue were service connected with noncompensable ratings assigned effective December 1, 2006, the day following separation from service. He appealed that decision. Because of work obligations there was some difficulty scheduling the Veteran for a post-service examination, but the record shows that the appellant made repeated efforts to get the examinations conducted. Finally the examinations were scheduled in January 2009. Increased ratings were assigned pursuant to the dates of the examinations. As will be discussed below, evidence on file provides a basis for backing the increases back to the day following separation from service. As such, the appeal will be allowed to that extent. Temporomandibular joint dysfunction The Veteran's temporomandibular joint dysfunction is rated noncompensable before January 6, 2009 and 30 percent thereafter. The Veteran's disability is rated under Diagnostic Code 9905 for limited motion of the temporomandibular articulation. Diagnostic Code 9905 provides for a rating of 10 percent when range of lateral excursion is 0 to 4 mm, or inter-incisal range is 31 to 40 mm (ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion). A 20 percent rating is assigned for inter-incisal range of 21 to 30 mm. A 30 percent rating is assigned for inter-incisal range of 11 to 20 mm. A 40 percent rating is assigned for inter-incisal range of 0 to 10 mm. In March 1983, the Veteran presented with pain on the right side of his jaw for three weeks. He was unable to open his mouth widely due to pain. Temporomandibular joint dysfunction was diagnosed at that time. When examined in August 1987, symmetric opening was to 20 mm with deviation left on wide opening to 32 mm. Chronic MPD left temporomandibular joint dysfunction associated with internal derangement was assessed. Records reveal a history of popping of the joint in service with the use of a bite appliance and other treatments. When examined in January 2009, the mandible and maxilla were within normal limits. Temporomandibular articulation revealed inter-incisal motion was within a range of 11 to 20 mm, and right and left lateral excursion was 0 to 4 mm. As discussed below, the above findings justify a 30 percent rating as of December 1, 2006. In this regard, during this period of time, it is clear that the Veteran's range of motion for opening his mouth was limited due to pain. Symmetric opening was to 20 mm with deviation left on wide opening to 32 mm. Although an exact inter-incisal range was not measured until the January 2009 VA examination, the Board cannot conclude that his inter-incisal distance became 11 to 20 mm the day of his VA examination. The evidence showing symmetric opening was to 20 mm is convincing. Resolving reasonable doubt in the Veteran's favor, the Board finds that a uniform 30 percent rating is warranted for the entire appeal period. Left wrist fracture The Veteran appeals the denial of a compensable rating for residuals of a left wrist fracture prior to January 14, 2009. The Veteran's left wrist disability has been rated under Diagnostic Codes 5215-5020. Diagnostic Code 5020 indicates that synovitis should be rated like degenerative arthritis (Diagnostic Code 5003) based on limitation of motion of the affected parts. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. According to Diagnostic Code 5003, when limitation of motion would be noncompensable, i.e., zero percent, under a limitation-of-motion code, but there is at least some limitation of motion, VA assigns a 10 percent disability rating for each major joint so affected, to be combined, not added. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5215, used in rating limitation of motion in the wrist, provides for a single, schedular 10 percent disability rating for either the minor or major extremity with dorsiflexion of less than 15 degrees or palmer flexion limited in line with the forearm. The regulations define normal range of motion for the wrist as dorsiflexion (extension) to 70 degrees, palmer flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71 , Plate I. Service treatment records reveal complaints of left wrist pain dating back to July 1985. He had wrist pain following heavy lifting in November 1985. It is noted that initially there was a diagnosis of a strain, but subsequently it was determined that there had been a fracture. There was open reduction accomplished, with good healing. Postoperatively there was noted to be some limitation of motion and weakness, especially with dorsiflexion. Recent examination revealed similar findings. Thus, the Board finds that the wrist more nearly approximated the next higher rating as of December 1, 2006, and that the currently assigned 10 percent rating should be assigned as of that date. Cervical Spine The Veteran appeals the denial of a compensable rating for cervical strain prior to January 14, 2009 and a rating higher than 20 percent thereafter. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent disability rating is warranted upon evidence of cervical forward flexion greater than 30 degrees but not greater than 40 degrees or combined range of cervical motion greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability is warranted where there is evidence of cervical forward flexion greater than 15 degrees but not greater than 30 degrees; or the combined range of cervical motion not greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted when forward cervical flexion is to 15 degrees or less; or when there is favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. Evidence on file reveals that the Veteran had complaints concerning his neck beginning in 1993, following a vehicle accident. He was treated throughout service for complaints of muscle strain and spasm. An X-ray during service, in 2005, revealed straightening of the cervical spine with mild reversal of the curvature with possible spasm. There was neuroforaminal narrowing and other studies showed straightening of lordosis with mild degenerative changes. Specific range of motion figures were not recorded. Nevertheless, given the objective findings, and the evidence of spasm, it is concluded that the appellant more likely than not approximated the higher rating from the time of separation from service. As such, the 20 percent rating is assigned effective December 1, 2006. All Claims The Board acknowledges the Veteran's assertions that his disabilities are more severe than evaluated to include his reports of pain. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, except where otherwise noted, that neither the lay or medical evidence demonstrates that the criteria for the next higher evaluations have been met. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The evidence, particularly most recently, shows mild occupational impairment due to the Veteran's disabilities. The objective and subjective evidence, however, does not demonstrate that the Veteran is unemployable as a result of his disabilities. Therefore, any inferred TDIU claim is inapplicable in this case. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and other codes provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, the symptoms associated with the service- connected for disabilities are contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. ORDER An initial rating of 30 percent for temporomandibular joint disease as of December 1, 2006, is granted, subject to the law and regulations governing the award of monetary benefits. A initial 10 percent rating for residuals of left wrist fracture as of December 1, 2006, is granted, subject to the law and regulations governing the award of monetary benefits. An initial 20 percent rating for cervical strain (claimed as cervical spine and chronic neck conditions) as of December 1, 2006, is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs