Citation Nr: 1338446 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-00 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial, compensable evaluation for service-connected temporomandibular joint (TMJ) syndrome. ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1986 to July 2010. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO granted service connection for multiple disabilities asserted in a VA Quick Start initiative claim that the Veteran filed while on active duty. The RO granted service connection for multiple disabilities, including temporomandibular joint (TMJ) syndrome, and assigned an initial non-compensable rating for TMJ syndrome effective August 1, 2010 (the day following discharge). The Veteran filed a notice of disagreement (NOD) in December 2010, and the RO issued a statement of the case (SOC) in November 2011. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in January 2012. Because the Veteran disagreed with the initial rating assigned following the award of service connection for his TMJ syndrome, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals additional records that were considered in the adjudication of the present appeal. FINDING OF FACT Since the August 1, 2010 effective date of the grant of service connection, the Veteran's service- connected TMJ syndrome has been manifested by a limitation of inter-incisal movement no worse than 50 mm, a range of right lateral excursion to 15mm, and a range of left lateral excursion to 7mm. CONCLUSION OF LAW The criteria for an initial compensable rating for TMJ syndrome are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.150, Diagnostic Codes 9999- 9905 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) states that VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Turning to the duty to notify, VA must notify claimants of the evidence that is necessary, or would be of assistance in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The notice VA provides must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. §3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Board finds that VA has satisfied its duty to notify under the VCAA because the contents of the notice letters fully comply with requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Here, the Veteran participated in the VA Pre-Discharge Program's Quick Start Initiative, where he filed his initial claim for service connection prior to separation or retirement from active duty. A notice letter dated July 2010, sent prior to the rating decision issued in November 2010, advised the Veteran of the evidence and information necessary to substantiate any and all conditions he claimed for service connection prior to his release from active duty. The Veteran was notified of the evidence necessary to substantiate the claims, and advised on how VA determines the disability rating and effective date. The Veteran was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. Here, the Veteran was granted service connection for his TMJ syndrome in a November 2010 rating decision, and challenged the initial non-compensable rating assigned therein. The Board notes that the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, 38 U.S.C.A. § 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). As the contents of the notice letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and the notice served the purpose as a decision was issued awarding service connection, a disability rating, and an effective date, the Board concludes that VA satisfied its duty to notify the Veteran. VA also satisfied its duty to assist the Veteran in the development of his claim. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and providing a VA examination when warranted. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. In this case, the RO associated all of the Veteran's service treatment and VA examination records with the claims file. The Veteran did not identify any additional sources of relevant medical records. In addition, the Veteran had multiple VA examinations, including a dental examination in July 2010. Based on the foregoing, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim, and provided a VA examination. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to undertake to comply with the provisions of 38 U.S.C.A. § 5103, 5013A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis The Veteran seeks an initial compensable rating for his service-connected TMJ syndrome, contending that his currently assigned disability rating does not adequately reflect the severity of his disorder and a compensable rating is warranted. He reports that he experiences pain, fatigue, weakness and lack of endurance and loss of motion after repetition [of] motion. He believes that his condition is worsening. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The RO has assigned the initial noncompensable rating for TMJ disorder, under Diagnostic Code (DC) 9999-9905, indicating an unlisted disability rated on the basis of limited temporomandibular articulation. See 38 C.F.R. § 4.27. Under DC 9905, when the range of lateral excursion about the temporomandibular articulation is within 0 to 4 millimeters (mm) or when the range of inter-incisal motion about the temporomandibular articulation is from 31 to 40 mm, a 10 percent rating is warranted; an inter-incisal range of 21 to 30 mm warrants a 20 percent rating; an inter-incisal range of 11 to 20 mm warrants a 30 percent rating; and an inter-incisal range of zero to 10 mm warrants a 40 percent rating. Ratings for limited inter-incisal movement, however, may not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 3§§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Turning to the evidence presented, relevant service treatment records that address the Veteran's dental care in service are included in Envelopes 1 and 3, as the records in Envelope 2 were reviewed and found not pertinent to the TMJ syndrome currently before the Board. The service treatment records include the Veteran's air crew candidate examination in April 1987, that indicated the Veteran was dentally qualified, Type 2, Class 1, with all teeth present. (STRs, Envelope 1) The Veteran's medical history report in March 1989 noted "soft tissue - NCD" and Class 1, where the report of examination in March 1989 indicated he was Type 2, Class 1. (STRs, Envelope 1) A biennial air crew examination from June 1990 stated that the Veteran's dental examination indicated he was Type 2, Class 1, with a note stating that soft tissue was within normal limits. (STRs, Envelope 1) A biennial air crew examination from April 1991 indicated that the Veteran was dentally qualified, Type 2, Class 2, and a note stated that the Veteran had a "click of right TMJ - no pain, NCD." (STRs, Envelope 1) Additional relevant service treatment records include an April 1991 consultation sheet that indicated that the Veteran complained of a loud click in his right TMJ for several months with minimal pain, and was sent to be evaluated. (STRs, Envelope 3) A note in May 1991 indicated that the Veteran reported clicking and popping with no pain or limited range of motion, and the Veteran was informed about TMJ, and advised that no treatment was indicated at that time for the assessed problem of internal derangement with reduction. (STRs, Envelope 3) Later biennial air crew examinations in February 1993, March 1997 and March 1999 state that the Veteran was dentally qualified, Type 2, Class 1. (STRs, Envelope 1) The service dental treatment list also included a notation of TMJ within normal limits in March 2001, a complaint of jaw pain with ear drainage in April 2002, and a notation of slight bone loss/recession in August 2008 under the periodontitis section with recommended prophy treatment. (STRs, Envelope 3) The records also include August 2008 and March 2009 dental health questionnaires with pertinent findings/recommended treatment, where the dentist indicated that the Veteran had TMJ that had resolved. (STRs, Envelope 3) On VA dental examination in July 2010, the Veteran reported that he was diagnosed with a gap in his right jaw joint, and that the condition existed since 1991. The Veteran described current symptoms of loud popping on the right side of the jaw with pain when eating some foods. The Veteran indicated that he was not receiving any treatment for his condition. On examination, the Veteran displayed 50mm of inter-incisal movement with no pain, fatigue, weakness, lack of endurance, or incoordination after repetitive inter-incisal motion. The Veteran had right lateral excursive range of motion of 15mm initially, with repetitive right lateral excursion range of motion at 15mm with no report of pain, fatigue, weakness, lack of endurance or incoordination. The Veteran had left lateral excursive range of motion of 7mm initially, with repetitive right lateral excursion range of motion at 7mm with no report of pain, fatigue, weakness, lack of endurance or incoordination. Examination of the maxilla and examination of the mandible were both within normal limits. Examination of the teeth revealed a loss of tooth #16 due to extraction as the tooth was fractured. The examiner indicated that the loss of teeth did not accompany loss of masticatory surface. Examination of the teeth revealed attrition throughout. Panoramic x-rays were within normal limits. The VA examiner concluded that the diagnosis was TMJ jaw condition. The subjective factors were reports of loud popping of the right side of the jaw with pain with eating some foods. The objective factors included masseter muscle on the right tender to palpation, right and left TMJ coarse crepitus upon opening and closing and lateral movements, and right TMJ reciprocal pop upon opening and closing. The Veteran also underwent a general VA examination in July 2010 that did not address his TMJ syndrome, and is thus irrelevant to this matter. VA Treatment records from January 2011 to February 2011 do not include treatment for TMJ syndrome. The Veteran did not submit private dental treatment records relevant to his TMJ syndrome claim. The record also includes the Veteran's lay statements in his December 2010 notice of disagreement, and January 2012 appeal to the Board. The December 2010 notice of disagreement indicated that a Coast Guard dentist confirmed via x-ray that the Veteran had a gap in the joint of his right jaw. The Veteran stated that he has complained of pain in the jaw area since 1991, and has self-medicated for the pain due to advice he received on corrective surgery. The Veteran stated that he was advised not to have corrective surgery due to the complexity and odds of a successful correction for this condition. The Veteran indicated that the loud popping noise produced by the right jaw interferes with the normal operation of his jaw and produces pain when he eats. In his Form 9 appeal to the Board, the Veteran indicated that the VA examination report that stated he had no pain, fatigue, weakness or lack of endurance or loss of motion after repetitive motion for TMJ was not true. The Veteran stated that the examiner did not tell him to stop when he experienced pain, but instead coached the Veteran to go further when actually doing the measurements. The Veteran indicated that one of the examiner's actual statements was "come on, you can go further." The Veteran stated that he always self-medicated for the condition since the alternative was surgery that was not recommended. He indicated that the condition was poorly evaluated by the VA examiner, and has been an ongoing condition since service that is getting worse. After considering the foregoing evidence, the Board finds that the evidence is against a finding that a higher, compensable initial evaluation is warranted for the Veteran's TMJ syndrome. As the Veteran filed his claim for service connection while still on active duty, and challenged the propriety of the initial rating assigned for his TMJ syndrome, the Board has considered the whole of the evidence, from service treatment records to present, in evaluating this claim. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After considering the medical evidence and the Veteran's statements, the Board finds that the evidence is against a finding that the Veteran's range of inter-incisal motion about the temporomandibular articulation is from 31 to 40 mm. The evidence is also against a finding that the range of lateral excursion about the temporomandibular articulation is within 0 to 4mm to entitle the Veteran to even a 10 percent rating. The service treatment records do not include specific inter-incisal or lateral excursion measurements, but they do indicate that the Veteran's TMJ had resolved. Where there were complaints of pain within the service treatment records, the records did not indicate that there was limitation of motion. Upon VA examination in July 2010, the examiner noted inter-incisal motion of 50mm, right lateral excursion measurements of 15mm, and left lateral excursion measurements of 7mm at the outset of the examination, and upon repetition. These measurements are higher than the measurements required to secure a compensable 10 percent rating under Diagnostic Code 9905, and no decrease in the Veteran's abilities was noted after repetition. In addition, the measurements are well in excess of the zero to 4mm lateral excursion measurements required for a 10 percent evaluation, and in excess of the zero mm to 30mm inter-incisal motion required to obtain a 20, 30, or 40 percent rating. As such, the evidence is against granting a compensable rating for the Veteran's TMJ syndrome in this case. In addition, the Board considered granting a higher rating for the Veteran's TMJ syndrome, in addition to applying schedular criteria, by evaluating functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination for this musculoskeletal disability in conjunction with the diagnostic codes predicated on limitation of motion. See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). However, the Board notes that the VA examiner acknowledged the Veteran's reports in his history of symptoms of loud popping on the right side of the jaw with pain with eating some foods. The VA examiner indicated in objective factors that there was tenderness on palpation of the masseter muscle on the right side, as well as right and left TMJ coarse crepitus upon opening, closing, and lateral movements, with right TMJ reciprocal pop upon opening and closing. The VA examiner noted that there was no report of pain, fatigue, weakness, lack of endurance or incoordination upon examination during the range of motion testing, and noted that the Veteran attained inter-incisal motion of 50mm, right lateral excursion measurements of 15mm, and left lateral excursion measurements of 7mm, with no decrease in the measurements after repetition. As such, the VA examiner's objective examination revealed that the Veteran had no additional limitations of function due to pain, even upon multiple repetitions, despite the Veteran's arguments to the contrary. In addition, past complaints of pain within the service treatment records did not indicate that there was limitation of motion. Thus, the Board finds that the evidence is against the Veteran's assertion of entitlement to a higher evaluation due to functional loss due to pain. Johnston v. Brown, 10 Vet. App. 80, 85 (1997); DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). The Board has considered the applicability of other diagnostic codes for dental and oral conditions, but the evidence is against a finding that they are applicable in this case. The Veteran's mandible and maxilla were both normal upon VA examination in July 2010, with one tooth lost due to extraction since it was fractured. The evidence does not reveal chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. Nor does it reflect loss of the complete mandible or any portion of it, or nonunion or malunion of the mandible. Nor does the evidence reflect that the Veteran has loss of the complete ramus or any portion of it, loss of one or both sides of a condyloid process, bilateral or unilateral loss of a coronoid process, or loss of any portion of the hard palate. The evidence does not reveal loss of teeth due to loss of the substance of body of maxilla or mandible without loss of continuity. The record does not indicate that the Veteran has lost his maxilla or any portion of it, or that he has malunion or nonunion of the maxilla. Accordingly, Diagnostic Codes 9900-9904 and 9906-9916 for dental and oral conditions are not applicable in this case. See 38 C.F.R. § 4.150. Finally, the Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran and other lay witnesses. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences, including reporting certain symptoms such as pain and giving way. Layno v. Brown, 6 Vet. App. 465 (1994). Although the Board finds the Veteran competent to report the symptoms he experiences, the Veteran's statements are less credible and entitled to less probative weight in light of the medical evidence collected upon examination. For example, the Veteran's account of his symptomatology, including functional loss due to pain on motion, was inconsistent with examination that revealed no loss of range of motion upon repetition despite reported pain and the reported history during service. As such, more probative weight was assigned to the VA examiner's statements. The Board has considered whether staged ratings, are appropriate for the Veteran's service-connected TMJ syndrome; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for this disability is not warranted. Turning to extraschedular rating considerations, the Board must determine whether referral is warranted for a rating outside of the schedule for the Veteran's TMJ syndrome. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, so referral for extraschedular consideration is not required. The Veteran's reported pain, weakness, and range of motion limitations for the Veteran's TMJ syndrome are all contemplated by the Diagnostic Codes, and they do not indicate that a higher rating is warranted. Thus, the extraschedular analysis ends here, and referral for consideration of an extraschedular rating is not required. As a final point, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher rating includes a claim for a total rating based on individual unemployability (TDIU) where a Veteran claims that his service-connected disability prevents him from working. Here, the Veteran had not alleged entitlement to TDIU in the claim for an increased initial evaluation that is currently pending before the Board. However, the Board notes that review of the Virtual VA electronic claims file reveals correspondence from August 2012 that indicated the Veteran's service-connected disabilities currently interfere with his employment, and noted his 80 percent combined rating. However, no rating decision concerning this matter is not before the Board. For the foregoing reasons, the Board finds that the criteria for an initial compensable evaluation for the Veteran's TMJ syndrome have not been met. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial compensable evaluation for TMJ syndrome is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs