Citation Nr: 1748784	
Decision Date: 10/30/17    Archive Date: 11/06/17

DOCKET NO.  11-32 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for residuals of bilateral mandible fracture, status post open reduction and internal fixation.


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

K. Kardian, Associate Counsel 






INTRODUCTION

The Veteran served on active duty in the U.S. Navy from November 1993 to August 1996.

This matter is before the Board of Veteran's Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Board notes the Veteran's claims for a compensable rating for Methicillin-resistant Staphylococcus aureus (MRSA) infection, service connection for a low back disability, neck disability, GERD, migraines, a psychiatric disability, to include PTSD, numbness of legs and hands, bilateral hearing loss and tinnitus are currently on appeal but are awaiting a video conference hearing before a Veterans Law Judge and will be discussed in a separate decision. 

The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDING OF FACT

The Veteran's residuals of bilateral mandible fracture, status post open reduction and internal fixation are manifested by pain, stiffness, tenderness, occasional muscle spasms and limitation of inter-incisal range of motion between 31 to 40 mm.


CONCLUSION OF LAW

A rating in excess of 10 percent for residuals of bilateral mandible fracture, status post open reduction and internal fixation is not warranted. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. § 4.150, Diagnostic Code 9905 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The Board notes that neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits.

II. Compliance with Prior Remand

Previously the case was before the Board in October 2015. The case was remanded for a supplemental VA examination and additional development. A statement of the case (SOC) was issued as to the issues of entitlement to service connection for a low back disability, neck disability, GERD, migraines, a psychiatric disability, to include PTSD, numbness of left and right hands and legs, bilateral hearing loss, tinnitus and an increased rating for MRSA infection in March 2016.  The Veteran was afforded a VA examination in January 2016 and a supplemental opinion in May 2016. As such the Board finds there has been substantial compliance with the prior remand. 

III. Schedular Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings are not warranted.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2016). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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.

In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

IV. Analysis

The Veteran asserts he is entitled to an increased rating for his service-connected residuals of bilateral mandible fracture. Based on the evidence of record, the Board finds that the preponderance of the evidence is that a 10 percent rating, but not higher, is warranted for the entire period on appeal. The Veteran has reported ongoing pain, discomfort, stiffness, tenderness, headaches and muscle spasms on occasion. Additionally, the Veteran has reported his symptoms have increased in severity in recent years. The Veteran is competent to testify to such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his residuals of bilateral mandible fracture during the appeal.

The Veteran's service-connected residuals of bilateral mandible fracture status post open reduction and internal fixation are rated as 10 percent disabling pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9905, which contemplates disability ratings for limited motion of temporomandibular articulation. 

Under the applicable criteria, a 10 percent disability evaluation is warranted for range of lateral excursion 0 to 4 mm. A 10 percent is also warranted for inter-incisal range 31 to 40 mm. A 20 percent is assigned for inter-incisal range from 21 to 30 mm. A 30 percent is assigned for inter-incisal range from 11 to 20 mm. A 40 percent is assigned for inter-incisal range from 0 to 10 mm. Diagnostic Code 9905 notes that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion.  38 C.F.R. § 4.150.

Turning to the medical evidence of record the Veteran was afforded a VA examination in May 2010. The examiner noted the Veteran reported muscle spasms on the left side at times, ongoing pain, soreness, headaches and grinding of his teeth. See May 2010 VA examination. The examiner noted no popping, clicking or crepitus of the temporomandibular joints. Range of motion noted a hinge opening of 40 millimeters (mm) or greater. Right and left lateral excursive movement of 1 centimeter (cm) or greater was noted. Protrusive movements was 1 cm or greater. No deviation of the jaw with opening was reported. Palpation of the muscles underneath the jaw noted tenderness in the digastric region, underneath the left mandibular body region. The Veteran's bony sites had healed well and there was no indication of a deficit of bone. The examiner noted evidence of bruxism that is occurring however this is of an unknown etiology and it would be speculative to state that the bruxism is a result of the jaw fracture in 1994. The Board finds this examination is entitled to probative weight.

Next, the Veteran was afforded a VA examination in July 2015. The examiner noted no tenderness of palpation of the left and right temporalis and left and right medial pterygoid muscles. Tenderness was noted on palpation of the left and right lateral pterygoid muscles and left and right masseter muscles. Additionally, slight tenderness and palpation of the left and right TMJ was noted with no pain or discomfort on opening or closing of the left and right TMJ. On range of motion testing slight tightness and a feeling of fullness on the left and right buccinators muscles was reported. The examiner noted increased tenderness since the most recent VA examination and a decrease in left and right lateral excursive movements. The examiner noted no changes in the Veteran's maximal opening and a decrease in his lateral excursions. The Board finds this examination is entitled to less probative weight as the examiner failed to provide the range of motion measurements.   

Next, the Veteran was afforded a VA examination in January 2016. The examiner noted the Veteran reported a muscle spasm in his supra-hyoid area the morning of the examination. See January 2016 VA examination. Range of motion testing noted the Veteran's inter-incisal opening was 32 mm and on repetitive motion was 31 mm and 38 mm. Lateral excursion was 4-5 mm on the left and right, and with repetitive use was 8 mm on right and 4-5 mm on the left.  The masseter and pterygoid muscles were tender on manipulation but not significantly sore or painful.

Then, the Veteran was afforded a VA supplemental opinion in May 2016. The examiner noted that he could not report additional loss of range of motion due to pain on use, repeated use over a period of time, or flare-ups without resorting to mere speculation, as such would require an examination of the Veteran during a flare-up. See May 2016 VA supplemental opinion. The Board notes that the VA examination in January 2016 and supplemental opinion in May 2016 did not measure passive range of motion, however it is reasonable that active motion would be less than passive motion and thus measured passive motion would be less beneficial to the Veteran. Further, the opinions considered pain, fatigue and weakened movement during repetitive use. Thus the Board finds the VA examination and opinion are entitled to probative weight.

VA treatment records have been associated with the claims file. In August 2010 the Veteran reported ongoing chronic jaw pain. See August 11, 2010 VA treatment record. 

Based on the lay and medical evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the entire period on appeal. The Veteran has reported ongoing pain, tenderness, stiffness, headaches and muscle spasms at times. The Board notes the Veteran's reports of a worsening of his symptoms. The Veteran is competent to testify to such lay observable symptomatology and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. 

To warrant a 20 percent rating based on limited motion, inter-incisal range of motion must be from 21 to 30 mm. The VA examination in May 2010 noted inter-incisal range of motion was 40mm or greater. The VA examination in July 2016 noted inter-incisal range of motion was 32 mm, and with repetitive use was 31 mm. As the evidence does not reflect an inter-incisal range of motion of 30 mm or less an increased 20 percent rating is not warranted. Additionally, as noted above under Diagnostic Code 9905 ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Under range of motion for lateral excursion 0 to 4mm is rated as 10 percent disabling, and thus would not warrant an increased rating. 

In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The evidence shows that the Veteran has, at different times, complained of pain, stiffness, muscle spasms, and headaches all of which the Veteran is competent to report. Jandreau, 492 F.3d 1372. The VA examination in January 2016 noted that repetitive use resulted in an inter-incisal range of motion between 31 to 38 mm due to factors such as weakness, incoordination, fatigability, flare-ups or pain after repetitive testing. 38 C.F.R. §§ 4.40, 4.45, 4.59.  The VA supplemental opinion in May 2016 specifically considered the Veteran's pain on use but could not report additional loss of range of motion due to pain on use, repeated use over time, or flare-ups without resorting to mere speculation, as such would require examination of the Veteran during a flare-up.   Thus, the VA examiners specifically considered these factors, and their effects, including functional loss with pain on movement after repetitive use which has been considered in the Veteran's assessment of his range of motion and the current rating. As such, the Board finds that a higher rating is not warranted on this basis. 

The Board has also considered other analogous criteria to afford the Veteran a higher rating; however, the Veteran does not have loss of ramus, condyloid process, hard palate, or teeth due to loss of substance of body of maxilla or mandible. He also does not have nonunion or malunion of the mandible. 38 C.F.R. § 4.150.

Additionally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been raised by the record. See Doucette v. Shulkin, 28 Vet.App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of records).

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 10 for the Veteran's service-connected residuals of bilateral mandible fracture is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3.  For these reasons, the claim is denied.


ORDER

A rating in excess of 10 percent for residuals of bilateral mandible fracture, status post open reduction and internal fixation is denied.



____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs