Citation Nr: 1341229 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 08-04 186 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 20 percent for bilateral temporomandibular joint (TMJ) arthroplasty, residuals of arthritis, with resorptive changes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to October 1987. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 2006 rating decision, by the St. Petersburg, Florida, Regional Office (RO), which increased the evaluation for bilateral temporomandibular joint (TMJ) arthroplasty, residuals of arthritis, with resorptive changes from 10 percent to 20 percent, effective November 10, 2005. The Veteran perfected a timely appeal to the rating assigned. In February 2012, the Board remanded the case for further evidentiary development. A review of the record reflects compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in August 2013. The Veteran's VA claims file has been returned to the Board for further appellate consideration. A review of the Virtual VA paperless claims processing system reveals that an informal hearing presentation from the Veteran's service representative, dated October 21, 2013 has been associated with his paperless claims file. FINDING OF FACT Temporomandibular joint dysfunction is not manifested by an inter-incisal range of 11 to 20 mm. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for bilateral temporomandibular joint (TMJ) arthroplasty, residuals of arthritis, with resorptive changes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.10, 4.21, 4.40, 4.45, 4.150, Diagnostic Code 9905 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in January 2006 from the RO to the Veteran which was issued prior to the RO decision in January 2009. Additional letters were issued in July 2008 and February 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran 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. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested with respect to the claim at issue. The Veteran has been afforded VA examinations. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Findings necessary to apply the criteria for rating the temporomandibular have been made. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in obtaining evidence pertinent to his claim. Therefore, no useful purpose would be served in remanding the claim for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. By a rating action in July 1988, the RO granted service connection for bilateral temporomandibular joint (TMJ) arthroplasty, residuals of arthritis, with resorptive changes, evaluated as 10 percent disabling, effective October 7, 1987, under Diagnostic Code (DC) 9905. In a statement in support of claim (VA Form 21-4138), dated in November 2005, the Veteran requested an increased rating for his bilateral temporomandibular joint dysfunction. He indicated that the condition had worsened and he was currently receiving treatment through the VA Healthcare system. Submitted in support of the Veteran's claim were VA progress notes dated from June 1999 to August 2005, which show that the Veteran received treatment for jaw pain. A nursing note, dated in February 2003, indicates that the Veteran called and reported that the as having increased pain in his jaw. In March 2003, the Veteran was seen at the oral surgery clinic, at which time he indicated that he hasn't been able to eat for the past month. On examination, maximum incisal opening was 30 mm. Limited lateral excursion was 2-3 mm with pain; there was no pain to palpation, and no swelling was observed. The Veteran was instructed to keep soft diet for 2 weeks and he was prescribed Naproxen. When seen in July 2003, the Veteran indicated that he was doing well. During a clinical visit in January 2004, the Veteran complained of jaw pain; it was noted that the Veteran had a splint which he wears at night. Of record is a lay statement from the Veteran's sister, dated in February 2006, indicating that the Veteran's TMJ problems had been causing him a lot of pain. The Veteran was afforded a VA examination in October 2006. It was noted that the Veteran had temporomandibular joint implants placed at the Air Force Academy years ago; the implants have not been removed and the implants were left in place. It was also noted that the Veteran had bilateral sagittal split osteotomy for advancement of the mandible one year after the implants were placed. He complained of soreness and increased popping and clicking on the left. It was noted that the Veteran had normal maxillary mandibular dentition and normal intercuspation. The incisal opening on the Veteran was 30 mm. There was no bony loss to the mandible other than a small notch at the inferior border of the mandible on the right side consistent with bilateral sagittal split osteotomy. Also on the left side, there was a small notch consistent with a bilateral sagittal split osteotomy. The Veteran was wearing no prosthesis at that time. A CT scan revealed that the prosthesis on the left side was anteriorly displaced and with increased left TM joint degenerative disease since a prior study was done in March 2003. It was noted that the mandibular right condyle prosthesis was in a stable position within the right glenoid fossa. There was no evidence of any increased TMJ degeneration. The impression was that he had left TMJ degeneration which had increased since the prior study of March 27, 2003. The diagnosis was left TMJ degeneration which had increased since the prior study of March 27, 2003. The Veteran was afforded another VA examination in February 2012. At that time, the Veteran reported a history of popping and clicking in both TMJs. It was noted that the Veteran was diagnosed with TMJ dysfunction and osteoarthritis in the USAF; splint therapy was not successful. In 1980, he had a bilateral TMJ arthroplasty with Teflon implants. It was further reported that the Veteran's symptoms did not improve with the first surgery and he later had a bilateral sliding osteotomy to correct a Class II malocclusion and a mandibular retrognathia. The Veteran stated that his condition has been getting progressively worse; he is currently taking Motrin 3 times a day as needed for pain. Examination revealed no loss of bone of the maxilla, and no malunion or nonunion of the maxilla. There was no loss of bone of the mandible, no malunion and nonunion of the mandible. The intercisal range of motion was 0 to 21 mm; the right lateral excursion was 0 to 4 mm, and the left lateral excursion was 0 to 10 mm. There was no loss of bone of the hard palate, no evidence of osteoradionecrosis and no evidence of osteomyelitis. There was no tooth loss due to loss of substance of body of maxilla or mandible. No speech difficulty was noted. The examiner noted that auscultation of the joint produced popping, some crepitus, weakness, and limitation of movement. Upon four repetitive movements, there was pain and fatigue but there was no joint incoordination. It was noted that the Veteran worked as a contract specialist and was currently employed; he had missed two weeks in the last 12 months due to his disability. The pertinent diagnosis was limited motion of the jaw. It was noted that this disability's impact on occupational activity was decreased concentration. In an addendum to the above examination, dated in March 2012, the examiner stated that the limited motion of the jaw was most likely permanently aggravated by service-connected disability. III. Legal Analysis. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. Part 4 (2013). The provisions of 38 C.F.R. § 4.1 require that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. The regulation at 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the Veteran's working or seeking work. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is to be assigned. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this case, the Board has concluded that the Veteran's TMJ dysfunction has not significantly changed and that a uniform evaluation is warranted. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Veteran appeals the rating which assigned only a 20 percent disability rating for temporomandibular joint dysfunction. 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. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905, Note. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a disability rating in excess of 20 percent for bilateral TMJ arthroplasty, residuals of arthritis, with resorptive changes. The evidence shows that the Veteran's inter-incisal range does not meet the criteria for a rating in excess of 20 percent under Diagnostic Code 9905. Massey v. Brown, 7 Vet. App. 204 (1994) (holding that in the application of schedular ratings, VA must only consider the factors as enumerated in rating criteria). The above findings justify a 20 percent rating but no higher. In this regard, at most, the evidence shows range of motion for opening the mouth, measured by inter-incisal distance, is 21 to 30 mm. The evidence is devoid of showing that the criteria for the next higher evaluation have been met. To warrant a higher disability rating of 30 percent under Diagnostic Code 9905, the evidence must show inter-incisal range of 11 to 20 mm. In this case, the evidence of record does not reveal that the Veteran's disability warrants a 30 percent disability rating or higher. The VA examination reports do not show that the Veteran has an inter-incisal range of motion of 20 mm or less. The most recent VA examination report in February 2012 does show range to 21 mm with pain, but this is not sufficient to warrant a higher disability rating. Therefore, the Veteran does not warrant an initial disability rating in excess of 20 percent. Although the Veteran has presented with complaints of pain, the Board finds that the Veteran is not entitled to a higher disability rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the Veteran did report pain during his range of motion testing. However, the effect of the pain in the Veteran's disability is contemplated in the currently assigned disability rating of 20 percent. The Board observes that 38 C.F.R. § 4.40 does not require a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased disability rating. Therefore, the Veteran's disability does not warrant an initial disability rating in excess of 20 percent under Deluca. In reaching this conclusion, the Board acknowledges the Veteran's belief that he warrants a higher disability rating for his disability. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, such as pain with difficulty chewing. However, the Board finds that the VA examination reports are the most persuasive evidence addressing the Veteran's disability and whether he is entitled to a higher disability rating in accordance with the schedular criteria. The Board finds this is so because the VA examiners completed comprehensive oral examinations of the Veteran and measured the Veteran's inter-incisal opening. Thus, the Board affords more value to the clinical findings in the VA examination reports than the Veteran's general statements requesting a higher disability rating. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the assignment of an initial disability rating in excess of 20 percent for his TMJ dysfunction. Thus, the benefit of the doubt doctrine is not applicable and the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The Board has also considered referral for extra-schedular consideration. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong in Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected TMJ is inadequate. It does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. A comparison between the level of severity and symptomatology of the Veteran's symptoms with the established criteria found in the rating schedule for oral disorders shows that the rating criteria reasonably describe ratings for oral disorders, but the Veteran simply does not meet the criteria for the higher disability ratings. Therefore, the Board finds that the record does not reflect that the Veteran's disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. In the absence of these factors, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected disability under the provisions of 38 C.F.R. § 3.321(b) (1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 20 percent for bilateral temporomandibular joint (TMJ) arthroplasty, residuals of arthritis, with resorptive changes is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs