Citation Nr: 1604964 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 08-20 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for temporomandibular jaw dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the 10 percent rating assigned for temporomandibular jaw dysfunction. The claim was remanded by the Board in May 2012 and May 2014 for additional development. It has been returned for appellate review. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT The Veteran's temporomandibular jaw dysfunction is not manifested by inter-incisal range of temporomandibular articulation limited to 21 to 30 mm. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for temporomandibular jaw dysfunction have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.150, Diagnostic Code 9905 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by a letter dated in January 2007, and additional notice by a July 2008 letter. The claim was readjudicated in an October 2008 statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records; assisted the appellant in obtaining evidence; afforded the appellant physical examinations; and obtained medical opinions as to the severity of his disability. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). There was also substantial compliance with the Board's May 2012 and May 2014 remand instructions as the Veteran was given an opportunity to identify any healthcare provider who treated him for his temporomandibular jaw dysfunction; additional VA treatment records were obtained; and the requested VA examinations were conducted. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that in a June 2012 VA Form 21-4138, the Veteran reported that he only received VA treatment for his temporomandibular jaw dysfunction. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. When evaluating disabilities of the musculoskeletal system, an evaluation of the extent of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. Service connection was originally granted for temporomandibular jaw dysfunction in an April 2002 rating decision, which assigned a noncompensable rating pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9905, effective November 21, 2001. The rating was subsequently increased to 10 percent, also effective November 21, 2001, in an October 2002 rating decision. In the March 2007 rating decision that is the subject of this appeal, the RO continued the 10 percent rating assigned for temporomandibular jaw dysfunction pursuant to Diagnostic Code 9905. The Veteran contends that he is entitled to an increased rating because his condition has worsened. See November 2006 VA Form 21-4138. In a February 2007 VA Form 21-4138, he reported that his temporomandibular jaw dysfunction had become more problematic as the years went on; that he had a maxillary deficiency and had been left with a Class III malocclusion (non-functional); and that he was not always able to masticate food properly. The Veteran has also reported continuous clicking in his jaw and that he has been told his jaw structure and placement of his teeth are such that he does not, and probably will never have, a normal bite, which makes chewing food a chore. See May 2008 VA Form 9. Diagnostic Code 9905 provides the rating criteria for limited motion of temporomandibular articulation. A 10 percent rating is warranted when the range of lateral excursion is limited from 0 to 4 mm or the inter-incisal range is limited to 31 to 40 mm; a 20 percent rating is applicable when the inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is for contemplation when the inter-incisal range is limited to 11 to 20 mm; and a 40 percent rating is assigned when the range is limited to 0 to 10 mm. The evidence in this case consists of several VA examination reports and VA and private treatment records. Although the Veteran receives substantial VA dental treatment, much of the treatment he has received has been for his teeth and periodontitis, not his service-connected temporomandibular jaw dysfunction. In an October 2007 letter, M. B. R., D.M.D., reported that the Veteran was last seen at his office on November 28, 2005, for restorative care; that he presented with a Class III malocclusion and posterior bite collapse; and that in addition to ongoing preventive care, he required periodontal treatment and restoration of his occlusion. No range of motion measurements related to temporomandibular articulation were provided. The Class III occlusion is also noted in VA dental treatment records. It was also noted in a January 2008 record that the Veteran had a history of removable prosthesis replacements that were lost and never remade, which had resulted in a severe overclosure of his vertical dimension of occlusion (VDO). An April 2009 VA dental record documents that the Veteran presented with a non-corrected Class III dental malocclusion with a bilateral posterior x-bite. A 46 mm interincisal opening (IIO) with 3 mm right midline shift was reported. Crepitus of the right temporomandibular joint (TMJ) without symptoms was noted, as was good IIO with full range of motion. It was also noted that the Veteran functioned with the existing occlusion. In a December 2009 VA dental record, it was noted that the Veteran's Class III malocclusion with bilateral x-bite and narrow maxillary arch would yield little to no occlusion with replacement of chronically absent posterior teeth. A January 2011 VA dental treatment record notes that the Veteran had good IIO with a3 mm right midline shift and crepitus of the right TMJ without symptoms. There were no prosthetic needs as the Veteran was functioning with the existing occlusion. The Veteran presented for a VA dental treatment in December 2012, but declined due to complaint that a ribboned splint was irritating his tongue and that his teeth were very tight. The Veteran also complained of clicking of his TMJ. The splint was smoothed off for his comfort. A subsequent December 2012 VA dental note documents that the Veteran did not report any symptoms associated with TMJ. Examination revealed good IIO with good range of motion. There was no pain to palpation of the condyles. Crepitus of the right TMJ without symptoms was noted. There were no prosthetic needs as the Veteran was functioning with the existing occlusion. The Veteran underwent a VA examination in April 2013. The only diagnosis rendered was a fractured mandible in 1965. The examiner noted that it was treated with closed reduction in service. In pertinent part, the examiner noted that the Veteran did not have anatomical loss or bony injury of the mandible or maxilla; had not lost any part of the mandible or mandibular ramus; had not lost either condyle or coronoid process of the mandible; did not have malunion or nonunion of the mandible or maxilla; had not lost any part of the maxilla; had not lost any part of the hard palate; did not have osteomyelitis or osteoradionecrosis of the mandible; and did not have bisphosphonate-related osteonecrosis of the jaw. An x-ray showed normal continuity of the mandible, severe periodontitis, and normal post-operative healing of the mandible fracture. The Veteran's condition did not impact his ability to work. It was noted that the Veteran claimed he could not eat well due to his bite. The examiner reported that there was no limitation of mandible movement after repeated attempts with interincisal opening greater than 40 mm and lateral movement greater than 4 mm. There was no TMJ tenderness or muscular tenderness on palpation. A Class III malocclusion with posterior bilateral cross bite was noted, but there were no irregular borders of the mandible and normal continuity of the mandible. The examiner noted that the Veteran's inability to chew or eat was a result of his Class III malocclusion, which required orthognathic surgery and ortho treatment to correct. The Veteran underwent another VA examination in December 2014. It was noted that the Veteran had a developmental Class III occlusion with lack of posterior support/chewing surface. The examiner noted that the Veteran did not have anatomical loss or bony injury of the mandible or maxilla and/or osteomyelitis/osteoradionecrosis/ bisphosphonate-related osteonecrosis of the jaw. The Veteran's condition did not impact his ability to work. The Veteran reported that he could not chew properly. The examiner noted that the Veteran had a severe developmental Class III malocclusion and no posterior occlusion. The Veteran did not report any symptoms associated with TMJ. Clinical findings included a 50mm maximum incisal opening; left and right lateral openings of 6mm; and left crepitus. The examiner noted that the Veteran's inability to chew is very likely due to the Class III malocclusion that is developmental and not due to the fractured jaw that he had in 1965. The preponderance of the evidence of record does not support the assignment of a rating higher than 10 percent for the service-connected temporomandibular jaw dysfunction under Diagnostic Code 9905. This is so because there is no evidence to suggest the Veteran's disability has resulted in inter-incisal range of temporomandibular articulation limited to 21 to 30 mm so as to support the assignment of the next highest (20 percent) rating. Rather, inter-incisal range of motion was noted to be 46 mm in April 2009, greater than 40 mm in April 2013 and 50 mm in December 2014. See VA examination reports; VA treatment records. For this reason, the evidence supports the currently-assigned 10 percent rating for the service-connected temporomandibular jaw dysfunction. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected temporomandibular jaw dysfunction. The Board acknowledges the subjective complaints of clicking and objective evidence of crepitus. It was noted in several VA treatment records, however, that no prosthetic was needed as the Veteran was functioning with the existing occlusion. In addition, the VA examiner who conducted the April 2013 examination specifically noted that there was no limitation of mandible movement after repeated attempts with interincisal opening greater than 40 mm and lateral movement greater than 4 mm. In light of the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected temporomandibular jaw dysfunction is not warranted based on functional impairment. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca, 8 Vet. App. at 204 -06. The Board has also considered other pertinent diagnostic criteria to determine whether a rating in excess of 10 percent is warranted for the service-connected temporomandibular jaw dysfunction. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). None of the other diagnostic codes, however, are applicable to the Veteran's service-connected temporomandibular jaw dysfunction as there is no evidence of chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible (Diagnostic Code 9900); complete loss or loss of any portion of the mandible (Diagnostic Codes 9901 and 9902); nonunion or malunion of the mandible (Diagnostic Codes 9903 and 9904); loss of whole or part of the ramus (Diagnostic Code 9906); loss of less than one-half the substance of the ramus, not involving loss of continuity (Diagnostic Code 9907); loss of one or both sides of the condyloid process (Diagnostic Code 9908); loss of the coronoid process (Diagnostic Code 9909); loss of half or more of the hard palate (Diagnostic Code 9911); loss of less than half of the hard palate (Diagnostic Code 9912); any loss of the maxilla (Diagnostic Codes 9914 and 9915); or malunion or nonunion of the maxilla (Diagnostic Code 9916). See VA and private treatment records; VA examination reports. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2015). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms exhibited by the Veteran's temporomandibular jaw dysfunction, to include limitation of inter-incisal range of temporomandibular articulation, are contemplated by the rating criteria (i.e., 38 C.F.R. § 4.150, Diagnostic Code 9905), which reasonably describe the Veteran's disability. The Board acknowledges the Veteran's recent complaints of difficulty eating and chewing; however, it notes that the December 2014 VA examiner specifically determined that those problems were due to the Veteran's developmental Class III malocclusion and not due to the fractured jaw that he had in service. For these reasons, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 10 percent for temporomandibular jaw dysfunction is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs