Citation Nr: 1751607 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 10-24 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating greater than 20 percent prior to June 22, 2017, for degenerative disc disease, lumbar spine. 2. Entitlement to an initial rating greater than 40 percent from June 22, 2017, for degenerative disc disease, lumbar spine. 3. Entitlement to an increased rating greater than 10 percent prior to June 27, 2014, for chronic post traumatic headaches. 4. Entitlement to an increased rating greater than 30 percent from June 27, 2014, to May 18, 2017, for chronic post traumatic headaches. 5. Entitlement to an increased rating greater than 10 percent from May 18, 2017, for chronic post traumatic headaches. 6. Entitlement to a compensable rating for residuals, fracture, mandibular condyle, right. REPRESENTATION Appellant represented by: Ryan C. Farrell, Agent ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from October 1981 to December 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2009, May 2011, and October 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Subsequently, in a July 2017 rating decision the RO granted entitlement to an increased rating of 40 percent for the Veteran's service-connected low back disability, effective June 22, 2017, and an increased rating of 30 percent for the Veteran's headaches from June 27, 2014, to May 18, 2017. Regardless of the RO's actions, the issues remain before the Board because the increased ratings were not complete grants of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). A May 2016 Statement of the Case (SOC) denied entitlement to a total disability rating based on individual unemployability due to service-connected disability or disabilities (TDIU). The Veteran did not appeal that determination and the record does not otherwise include subsequent contentions that would raise the issue of entitlement to TDIU as part of the ongoing increased rating claims. As such, no further consideration of the TDIU claim is warranted. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated). This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Throughout the appellate time period, the Veteran's degenerative disc disease, lumbar spine, is manifested by forward flexion of 30 degrees or less, but not by unfavorable ankylosis of the spine. 2. Throughout the appellate time period, the Veteran's headache disorder has been the sole residual symptom associated with an in-service TBI (other than the residuals of fracture, right mandibular condyle that is separately rated and considered herein) and the headaches are not very frequent and productive of severe economic inadaptability. 3. The Veteran's decreased jaw motion and loss of use of masticatory function is not attributable to the service-connected residuals of right mandibular condyle fracture. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent for degenerative disc disease, lumbar spine, have been met for the period prior to June 22, 2017. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. The criteria for an initial rating greater than 40 percent for degenerative disc disease, lumbar spine, have not been met for any period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5242 (2017). 3. The criteria for a disability rating of 30 percent, but no greater, for chronic posttraumatic headaches have been met prior to June 27, 2014. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.130, DC 9304-8045 (2008), 4.124a, DC 8100 (2017). 4. The criteria for a disability rating greater than 30 percent from June 27, 2014, to May 18, 2017, for chronic posttraumatic headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.130, DC 9304-8045 (2008), 4.124a, DC 8100 (2017). 5. The criteria for a disability rating of 30 percent, but no greater, for chronic posttraumatic headaches have been met from May 18, 2017. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.130, DC 9304-8045 (2008), 4.124a, DC 8100 (2017). 6. The criteria for a compensable disability rating for residuals, fracture, mandibular condyle, right, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.150, DC 9999-9904 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Neither the Veteran nor his representative has 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. Ratings Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014). Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Back Disability The Veteran's low back disability is rated under DC 5242 for degenerative arthritis of the spine. The Veteran's low back disability is rated 20 percent disabling prior to June 22, 2017, and as 40 percent disabling from that date. He alleges his low back disability is more severe than currently rated. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2017). Notes appended to the rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Id., Note (3). Further, the term "combined range of motion" refers to "the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information). Spine conditions rated under DC 5243, for intervertebral disc syndrome, may be rated alternatively based on incapacitating episodes. The criteria provide for a 10 percent rating where intervertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. "Incapacitating episodes" was defined in Note (1) as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate DCs if it would result in a higher combined evaluation for the disability. Having reviewed the complete record, affording the Veteran the benefit of the doubt, the Board finds that the Veteran meets the criteria for a 40 percent rating, but no more, for his service-connected spine disability, for the entire appeal period. The Veteran underwent a VA examination in August 2013. The examiner noted review of the claims file. The Veteran reported flare-ups, specifically when it was raining or cooler outside he did not seem to be able to get off of the couch. On range of motion testing, forward flexion was to 35 degrees, with objective evidence of pain onset at 10 degrees; extension to 10 degrees, with pain onset at 5 degrees; right and left lateral flexion was to 20 degrees, with pain onset at 20 degrees for each; right lateral rotation was to 20 degrees, with pain onset at 5 degrees; and left lateral rotation to 25 degrees, with pain onset at 5 degrees. Following repetitive motion testing, forward flexion was to 35 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. There was functional loss or impairment due to less movement than normal, pain on movement, and disturbance of locomotion. There was tenderness to palpation and guarding or muscle spasm resulted in abnormal gait. Muscle strength testing of the lower extremities ranged from 3 to 5 out of 5. There was no evidence of atrophy. Knee reflexes were normal and reflexes were absent in the ankles. Sensation was normal, other than it being decreased in the left lower leg/ankle. Straight leg raising testing was negative. There was no radicular pain or other signs due to radiculopathy. The Veteran did not have intervertebral disc syndrome. The Veteran made constant use of a cane. An April 2014 statement from the Veteran's sister indicated that the Veteran was unable to lift any objects over 20 pounds without pain and could not clean, bend, or stand for long periods of time. He required a cane to walk. An April 2014 statement from the Veteran's son stated that the Veteran had problems with riding in the car for long distances and described other problems with functioning. The Veteran underwent a VA examination in May 2014. The Veteran denied flare-ups of back pain, but described daily constant pain. On testing range of motion, there was full motion in all planes of motion and there was no objective evidence of pain. There was no change on repetitive motion testing. Muscle strength testing was normal. In a September 2014 notice of disagreement, the Veteran argued that the May 2014 VA examination was inadequate. He contended that no range of motion testing was undertaken. The Veteran underwent a VA examination in June 2016. The examiner noted review of the claims file and medical records. Since the last examination, the Veteran reported worsening back pain. Flare-ups occurred 2 to 3 times per week and lasted for 2 to 3 days at a time. The problems caused him to remain inactive for 1 to 2 days because the pain was so severe. He was unable to use the stairs when he has flare-ups. Range of motion testing could not be accomplished because the Veteran was having a flare-up and he could not complete range of motion testing. The Veteran was afforded a VA examination in June 2017. The examiner noted review of the claims file and medical records. The Veteran reported worsening low back pain. The pain was exacerbated with walking down stairs, bending, riding in the car for a prolonged period of time, or sitting / standing for a prolonged period of time. He took pain medication daily. There were daily flare-ups that were not related to a specific activity. There was functional loss or impairment due to pain with bending or prolonged sitting / standing. Range of motion testing showed forward flexion to 25 degrees, extension to 5 degrees, and right and left lateral flexion and rotation all to 10 degrees. There was pain on weight bearing and in all planes of motion. Lower extremity muscle strength was between 4 and 5 out of 5. There was no evidence of muscle atrophy. Knee reflexes were normal and ankle reflexes were hypoactive. Sensation testing was negative and straight leg raising testing was negative. There was no evidence of radiculopathy. There was not ankylosis of the spine. The Veteran did not have intervertebral disc syndrome. The Board concludes the objective medical evidence and the lay statements of record regarding the Veteran's symptomatology show disability that more nearly approximates that which warrants the assignment of a 40 percent disability rating for the entire appellate time period. See 38 C.F.R. § 4.7. In that regard, the Board acknowledges that the May 2014 VA contract examination report included normal range of motion findings. The Veteran and his sister have disputed those findings and contend that no range of motion testing was done. Irrespective of whether range of motion testing was accomplished at that time, the findings reached are so disparate from prior and subsequent findings that the Board will afford them very limited probative weight. In addition, although the August 2013 VA examination report showed forward flexion of 35 degrees, which is the basis for the current 20 percent rating during that time, there was objective evidence of pain onset at 10 degrees. As such, there is evidence that the Veteran was unable to move his thoracolumbar spine in a normal manner prior to 30 degrees. Such findings are consistent with the subsequent VA examinations of record (other than the May 2014 findings discussed above). As such, the Board finds that a 40 percent disability rating under DC 5242 is warranted for the entire appellate time period. The Board finds, however, that a rating greater than 40 percent is not warranted for any period on appeal. In that regard, the only diagnostic criteria that provides for a rating greater than 40 percent, requires a medical finding of ankylosis of the spine or that the low back disability caused incapacitating episodes amounting to at least six weeks over a 12 month period. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). In this case, the medical evidence does not indicate the Veteran's spine is ankylosed (frozen) or that his low back disability causes incapacitating episodes amounting to at least six weeks per year. There is no indication or contention that a physician prescribed bed rest for a period totaling 6 weeks in any 12 month period during the appellate time period as required by regulation to constitute "bed rest" in the meaning of the DC. All the medical examinations of record have universally found that the Veteran had not had any incapacitating episodes in the 12 months prior to the examination and, moreover, did not have a diagnosis of intervertebral disc syndrome. The Veteran certainly has pain during much or all of his range of motion, but he has no evidence of muscle atrophy, which demonstrates that he is able to use his back in close to a normal manner, including duration of use, and that he, in fact, does so. See 38 C.F.R. § 4.40 (noting that, "A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like."). Therefore, a higher rating under DC 5242 or 5243 is not warranted. Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a (2017) if supported by objective medical evidence. In this regard, the Veteran is already separately service connected for left lower extremity radiculopathy. The Veteran has not submitted a substantive appeal as to that issue and, as such, no further discussion of these problems is warranted herein. As noted, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. In addition, the Board will consider the applicability of a separate rating for erectile dysfunction. In this case, the Veteran has consistently denied such problems. As such, separate ratings for these problems are not warranted. The Veteran's functional loss was considered. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's 40 percent rating is intended to compensate him for any functional limitation experienced as a result of the low back problems, specifically, the pain, weakness, and other problems experienced after repetitive motion. Moreover, with this grant, as the Veteran will be receiving the maximum rating contemplated for the low back for the entire appellate time period based on symptomatology that includes pain resulting in limitation of motion, absent ankylosis, further consideration of the DeLuca provisions and those of 38 C.F.R. §§ 4.40, 4.45 are unnecessary. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Finally, the Board acknowledges the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which it found that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. The VA examination reports of record did not include range of motion measurements in weight-bearing and non-weight-bearing or range of motion measurements for the low back. However, as the Veteran is in receipt of the maximum rating for painful motion (as contemplated and addressed in 38 C.F.R. § 4.59 ), the Board finds that any possible considerations or findings contemplated by 38 C.F.R. § 4.59 and the Court in Correia have been fully compensated for in the 40 percent rating assigned herein. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating of 40 percent, but no more, is warranted for the entire appellate time period. Headache Disability Historically, the Veteran's headaches were rated under DC 9304-8045 and since have been changed to DC 8100. The rating is 10 percent prior to June 27, 2014, 30 percent from June 27, 2014, to May 18, 2017, and 10 percent from May 18, 2017. The Veteran contends the ratings do not accurately reflect the severity of his condition. When entitlement to service connection was granted, the Veteran's headaches were rated as 10 percent disabling under DC 9304-8045. Notably, at the time of the original claim, 38 C.F.R. § 4.130, DC 9304 was applicable to head trauma and 38 C.F.R. § 4.124a, DC 8045 was applicable to brain disease due to trauma. Under the version of DC 8045 in effect prior to October 23, 2008, purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. were rated under the DCs specifically dealing with such disabilities, with citation of a hyphenated DC. Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were assigned a 10 percent disability rating and no more under DC 9304. This 10 percent rating was not to be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under DC 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, DC 8045 (2008). During the pendency of this appeal, however, VA amended the Rating Schedule by revising the portion of the Schedule that addresses neurological conditions and convulsive disorders to provide updated criteria for evaluating residuals of TBI. The amendment applies to all applications for benefits received by VA on or after October 23, 2008. 73 Fed. Reg. 54,693 (Sept. 23, 2008) ("The amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. The old criteria will apply to applications received by VA before that date"). However, a veteran whose residuals of TBI were rated by VA under a prior version of 38 C.F.R. § 4.124a, DC 8045, was permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. Id. The Veteran filed his claim prior to October 23, 2008 and did not request consideration under the new criteria; however, in an April 2010 Statement of the Case the RO noted that the Veteran is evaluated at the maximum evaluation for post traumatic headaches under the criteria in effect at the time service connection was established for this condition. It was also indicated that under the criteria now in effect the Veteran's subjective headaches would also be evaluated as 10 percent disabling, adjudicating the claim under the new regulations. As such, the Board will consider the claim under both the old and revised regulations. An increased rating ultimately was awarded under DC 8100, based on the provisions of the new criteria for DC 8045. Revised DC 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. The types of physical dysfunction set forth in the revised criteria do not encompass all possible residuals of a TBI. For residuals not listed in DC 8045 that are reported on an examination, VA is to evaluate under the most appropriate DC. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. In relevant part to the period from October 23, 2008, therefore, under DC 8100 a noncompensable rating is warranted for attacks less frequent than one every two months over the last several months; a 10 percent rating is warranted for characteristic prostrating attacks occurring on average once in a two month period over the last several months; 30 percent rating is warranted for characteristic prostrating attacks occurring on average once a month over the last several months; the maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100 (2017). In August 2005, the Veteran reported head pain that was exacerbated by bright lights and noise. He described "massive headaches" and that during them he was unable to function. The Veteran underwent a VA examination in October 2005. Therein, he described daily headaches that were debilitating 4 to 5 times per week. There was no visual aura, no vomiting, and no nausea. Light and sound could exacerbate the headaches. He could not predict the onset of the headaches. Lying down, sleeping, and being absolutely still would help the headaches go away. Following examination, the impression was chronic daily headaches that were judged to be moderately severe. Polypharmacy was considered to be a major contributing factor to either the exacerbation or promulgation of the condition. In November 2005, the Veteran was assessed with chronic posttraumatic vascular headaches and daily headaches associated with narcotic overuse. The Veteran was afforded a VA examination in September 2008, but the Veteran was uncooperative. An April 2014 statement from the Veteran's sister indicated that the Veteran was very sensitive to light, smell, and sound, which caused periods of nausea and vomiting. The Veteran was afforded a VA contract examination in May 2014. The Veteran described constant head pain. There was sensitivity to light. The duration of the headaches was less than 1 day. There were characteristic prostrating attacks less than once every 2 months. There were not very frequent prostrating and prolonged attacks of migraine or non-migraine pain. A June 2015 private treatment record noted acute onset of maximum intensity headache earlier in the day. The Veteran felt lightheaded, needed to sit down, and felt nauseous. There was no vomiting, numbness, or weakness. The Veteran had regular headaches, but this was headache was more severe than the norm. In November 2015, the Veteran reported improved headaches from daily to 3 to 4 days per week without headaches. He attributed the improvement to his medication. In June 2016, the Veteran also reported headaches with intermittent associated nausea and vomiting. In January 2017, the Veteran reported 2 to 3 headaches per week. The Veteran underwent another VA examination in May 2017. The examiner noted review of the claims file and medical records. The Veteran reported daily headaches and that if they lasted for more than 2 hours he would take additional medication. On average he had extended headaches 6 to 7 times per month. There was associated noise and light sensitivity. He also had sensitivity to perfume and cologne. The Veteran also had nausea and intermittent vomiting with the severe headaches. The examiner indicated that there were no prostrating attacks of headache pain. After review of the evidence, the Board finds that a 30 percent rating is warranted under DC 8100 for the Veteran's service-connected headache disorder for the entire appellate time period. The Veteran has consistently reported multiple headaches per week, some of which have involved light and sound sensitivity and less often nausea and vomiting. The Board acknowledges the finding of the May 2017 VA examiner that the Veteran had no prostrating attacks, but the Veteran's symptoms remain consistent with those reported at the time of the May 2014 VA contract examination and at that time the examiner found that the Veteran had characteristic prostrating attacks less than once every 2 months. Given this inconsistency, the Board will afford the Veteran the benefit of the doubt and presume that he experiences some number of prostrating headaches on a fairly regular basis. The Board also finds that a rating greater than 30 percent is not warranted for any period during the appellate timeframe. The lay and medical evidence is not consistent with symptomatology more closely akin to frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Despite daily headaches the Veteran generally is able to continue to function and it is relatively infrequent that the headaches are incapacitating. In this case, the Board finds no provision upon which to assign a rating greater than 30 percent for the Veteran's headaches associated with an in-service TBI for any period on appeal. As discussed above, the only symptoms attributable to the Veteran's in-service TBI are headaches and the residuals of a fractured right mandibular condyle that is evaluated below. As such, the Veteran does not meet the criteria for a rating greater than that assigned for the periods detailed above. In addition, the Board concludes that staged ratings are not warranted. Jaw Disability The Veteran is rated as noncompensably disabling for his residuals of right mandibular condyle fracture in service. The rating is under DC 9999-9904, which is assigned as analogous to DC 9904 for malunion of the mandible. Prior to September 10, 2017, DC 9904 provided for a noncompensable (zero percent) rating for slight displacement of the mandible; a rating of 10 percent is assigned for moderate displacement; a rating of 20 percent is assigned for severe displacement. A Note to DC 9904 states that the rating is dependent upon degree of motion and relative loss of masticatory function. The Board notes that as of September 10, 2017, the language of DCs for dental and oral conditions were revised to ensure that the rating schedule uses current medical terminology and to provide detailed and updated criteria for evaluation of dental and oral conditions for disability rating purposes. Specific to DC 9904, a noncompensable rating is warranted for displacement, not causing anterior or posterior open bite. A 10 percent rating is warranted for displacement, causing moderate anterior or posterior open bite. A 20 percent rating is warranted for displacement, causing severe anterior or posterior open bite. The Veteran has not been notified as to the recently changed regulations and the RO has not adjudicated the Veteran's claim under these new regulations. As any changes to DC 9904 represent only a clarification of the rating language and, as will be discussed in greater detail below, the Veteran's current problems are fully medically attributable to a post-service nonservice-related mandibular fracture, the Board does not find that the Veteran is prejudiced by the Board proceeding with a decision in this case. Prior to the Veteran's claim for increased rating, a September 2004 VA examination report noted a healed jaw and prior fractured mandible on the right side. The Veteran described persistent jaw pain, pain with opening and closing the jaw, and pain when biting and chewing. He had taken pain medication for the problem on an ongoing basis. On examination, there was tenderness, soreness, and pain to palpation over the right mandible and right temporomandibular joint. There was pain with opening and closing the jaw. There was normal occlusion of the teeth, but pain with biting down. There was no swelling or deformity noted over the jaw itself, but the jaw was slightly more prominent on the right side. In his October 2005 claim for increased rating, the Veteran described having undergone surgery in October 2005 for chronic jaw pain. He described difficulty talking, eating, and sleeping. The Veteran underwent a VA examination in January 2006. There was temporomandibular joint pain greater on the right side than the left. The Veteran also described popping, clicking, catching, and locking. On examination, the Veteran had a 35mm maximum interincisal opening with right and left excursions of 7 and 5mm. The diagnoses included bilateral temporomandibular joint pain, unassociated with arthritis. In June 2009, the Veteran sought in-patient treatment for psychiatry. The Veteran also was noted to have malunion of the lower jaw. The Veteran's past medical history included a current closed mandible fracture status post "fight." The Veteran was seen for an ENT consultation. The Veteran reported that he had been assaulted about 3 weeks previously. He was unclear about the circumstances, but apparently was engaged in an altercation while using illicit substances and awoke in prison with a sore jaw. The jaw pain had improved considerably and he was eating without difficulty. The Veteran had seen a private provider the previous week who planned to repair the jaw fracture, but the Veteran cancelled the surgery for unknown reasons. On examination, there was no open bite deformity or other evidence of malocclusion. There was minimal trismus, with at least a 4cm mouth opening. The impression was mandibular fracture at least 3 weeks after injury. The Veteran's fracture based on CT imaging would seemingly require operative repair. That said, surgical exposure and repair would be considerably more difficult and higher risk so far removed from the original injury. The fractured fragment was not mobile, but at present there was minimal trismus and only mild pain. Occlusion was quite good. As such, observation seemed an appropriate strategy. A mechanical soft diet for one month was prescribed. Prior and subsequent to the June 2009 mandibular fracture the Veteran was scheduled for multiple VA examinations, but was unable to appear due to incarceration. The Veteran underwent a VA contract examination in November 2015. The examiner noted review of the Veteran's electronic claims file. The Veteran reported pain flare-ups that were 10 out of 10 when trying to open the mouth to eat. Even when the Veteran was able to get food in the mouth he was unable to chew due to the pain. Instead, he had to grind his food and/or drink Boost shakes. On examination, right lateral excursion was 5.5mm, left lateral excursion was 4.0mm, and both were noted to be greatly decreased. Inter-incisal distance was 10mm. Functional loss resulted in an inability to masticate properly and the requirement for a soft blended diet. Pain was noted on examination with mouth opening and right and lateral excursion. There was objective evidence of pain with chewing. After repetitive motion testing, right and left lateral excursion both were 5.0mm and inter-incisal distance was 12.0mm. There was anatomical loss or bony injury of the mandible, specifically a fractured right condyle in 1983. There was no loss or injury to the maxilla, teeth, mouth, lips, or tongue. There was no osteomyelitis or tumors. Based on the above findings, a July 2016 VA medical opinion was requested. The dentist noted review of the medical records and that the original in-service right condyle fracture had healed well and did not return with complaints of pain in the months following the fracture. The Veteran reported a fracture of the jaw at age 16 and had sustained a left mandible fracture in two locations. In addition, the Veteran reported having been punched in the face in about 2008 with the maxillary front teeth fractured. Examinations in 1984 and 2004/2005 did not show any limitation of opening, with 45mm and 50mm respectively. The dentist acknowledged the conclusions of the November 2015 VA contract examination report, but the VA dentist concluded that the limitation of motion of the jaw was not caused by or a result of the service-connected right mandibular condyle fracture in 1983. The rationale was that the limitation of the opening did not occur until the left mandibular fracture in 2009. Due to the delay in seeking care, a surgical repair was not done due to increased risks. The mandibular fractures with displacement that are not surgically repaired frequently heal without full range of motion. The asymmetry of the condylar heads is not significantly abnormal and the shape and position of both condyles on panoramic image were adequate for normal function. There was no evidence that there had been an increase in the severity or symptoms of the service-connected healed right condyle fracture. The Board concludes that a compensable rating is not warranted for any period on appeal. The Board recognizes that there is significant current loss of motion and decreased masticatory function. The July 2016 dental opinion, however, clarified that the current loss of motion and problems chewing were due to the Veteran's 2009 mandible fracture in a fight that is entirely unrelated to his service-connected fracture. The dentist discussed how the Veteran's range of motion prior to the fracture was essentially unlimited and that mandibular fractures with displacement not surgically repaired frequently would heal with decreased range of motion. The Board finds this evidence the most probative evidence of record. The Board recognizes that the November 2015 VA contract examination attributed all of the Veteran's decreased motion to the in-service fracture, but that opinion failed to discuss the 2009 post-service fracture and any potential impact such a fracture might have had on functioning. In light of the foregoing, the Board finds that a compensable rating under DC 9904 is not warranted. Similarly no other DC would provide for a compensable rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably 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 record). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating of 40 percent for degenerative disc disease of the lumbar spine prior to June 22, 2017, is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an initial rating greater than 40 percent for degenerative disc disease of the lumbar spine is denied for the entire appellate time period. Entitlement to an increased rating of 30 percent for chronic post traumatic headaches prior to June 27, 2014, is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an increased rating of 30 percent from May 18, 2017, for chronic post traumatic headaches is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an increased rating greater than 30 percent for chronic post traumatic headaches is denied for the entire appellate time period. Entitlement to a compensable rating for residuals, fracture, mandibular condyle, right, is denied. ______________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs