Citation Nr: 1800368 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-53 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for headaches. 2. Entitlement to a disability rating in excess of 10 percent for temporomandibular joint dysfunction (TMJ) status post jaw surgery. 3. Entitlement to service connection for nerve damage in the jaw with pain and tenderness to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 and May 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The issue of entitlement to service connection for nerve damage in the jaw with pain and tenderness, to include as secondary to service-connected disability, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to January 24, 2017, the Veteran's headaches are not shown to be manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Beginning January 24, 2017, the Veteran's headaches are shown to be manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The evidence of record shows that TMJ was manifested by limited motion of the temporomandibular articulation of the inter-incisal range of 43 millimeters. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for headaches prior to January 24, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2017). 2. The criteria for a 50 percent, but not greater, disability rating for headaches, beginning January 24, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2017). 3. The criteria for a disability rating in excess of 10 percent for TMJ have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in February 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the September 2017 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. II. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. a. Headaches 1. Evaluation in Excess of 30 Percent Prior to January 24, 2017 Under Diagnostic Code 8100, a 50 percent rating is appropriate with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is appropriate with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 10 percent rating is appropriate with characteristic prostrating attacks average one in two months over the last several months. Id. A 0 percent rating is appropriate with less frequent attacks. Id. The Veteran received a VA examination for his headaches in November 2016 and reported headaches after his jaw surgery in 1965. Since then, he had occasional headaches that had worsened. He reported, amongst other things, pulsating or throbbing head pain, nausea, and sensitivity to light and sound. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain that occurred once a month. However, the examiner reported that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner also indicated that the Veteran's headache condition did not impact the Veteran's ability to work. The Board finds this examination highly probative of the Veteran's headache disability prior to January 24, 2017. Therefore, a 30 percent rating is appropriate because the evidence indicates that the Veteran's symptoms had not yet worsened. The November 2016 VA examination indicates that, despite the symptoms, the Veteran experienced characteristic prostrating attacks on average once a month over the last several months. Furthermore, those headaches were not shown to be productive of severe economic inadaptability. Therefore, an evaluation in excess of 30 percent prior to January 24, 2017, is not warranted. 2. Evaluation in Excess of 30 Percent Beginning January 24, 2017. The Veteran submitted a notice of disagreement in January 2017 and indicated that his migraines were more frequent, averaging two to three per month for the past several months. The Veteran reported that he was bedridden with a migraine for a day and a half, and it was causing very frequent prostrating and prolonged attacks that were very severe. He also stated that his migraines caused physical weakness, and he was forced to lay in complete darkness because he became very sensitive to light. The Veteran's physical weakness lasted three to four days, and he wore sunglasses in the house when recovering. The Veteran received another VA examination for his headaches in March 2017 and reported that his symptoms had worsened. He reported constant head pain, gastrointestinal symptoms, and almost daily headaches. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain that occurred once a month. However, the examiner reported that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic adaptability. The examiner also indicated that the Veteran had very frequent headaches that lasted for more than two days, and the condition had a functional impact on his physical and sedentary employment. Entitlement to the maximum schedular evaluation of 50 percent disabling, beginning January 24, 2017, the date of the notice of disagreement, is warranted. The Veteran is competent to report the symptoms he experienced because they are within the knowledge and personal observations of a lay witness. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Although the term "severe economic inadaptability" is not defined in the regulation, the Board finds that the nature and frequency of the headaches described by the Veteran and the March 2017 VA examination would approximate this definition. Severe economic inadaptability does not mean a claimant is completely unable to work, and VA conceded that the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 400 (2004). Here, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran's headaches more nearly approximate the criteria for a 50 percent rating under Diagnostic Code 8100 beginning January 24, 2017. Although the examiner found that the condition was not productive of severe economic inadaptability, the Veteran competently stated that he not only has a severe light sensitivity, but he is also so weak that he is essentially bedridden. Resolving reasonable doubt in favor of the Veteran, an increased evaluation to the maximum schedular 50 percent rating for the Veteran's migraine headaches under Diagnostic Code 8100, beginning January 24, 2017, is warranted. 38 U.S.C. § 5107(b). b. Temporomandibular Joint Dysfunction Under Diagnostic Code 9905, a 10 percent rating is warranted when the range of lateral excursion is limited from 0 to 4 millimeters (mm) or the inter-incisal range is limited to 31 to 40 mm. A 20 percent evaluation is applicable when the inter-incisal range is limited to 21 to 30 mm, and a 30 percent rating is for contemplation when the inter-incisal range is limited to 11 to 20 mm. A 40 percent rating is assigned when the inter-incisal range is limited to 0 to 10 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905. The Veteran received a VA dental and oral examination in November 2015, and the examiner noted a worsening of the Veteran's TMJ problem. The Veteran stated he began having pops and clicks in his temporomandibular joint after 2001, and his jaw once locked into place. He was, however, able to reduce the jaw himself and it has not happened again. The Veteran stated that he does not open his jaw too wide in fear of it locking again. On examination, the Veteran's full opening of his jaw was 43 millimeters, and his lateral excursion was seven millimeters bilaterally. The examiner noted distinct clicks and pops in the temporomandibular joint opening upon number openings and closings of the jaw, particularly on the left side. The Board finds this examination competent and credible. The Board notes the Veteran's assertion that the examination was inadequate. The Veteran argued that "[t]he examiner physically pried my jaw open farther than I normally am capable of opening the jaw" and "[t]his altered the results of the measurement." See July 2017 Notice of Disagreement. To the extent that the Veteran maintains that the examination was inadequate, "the presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) and applying the presumption of regularity to VA examinations); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). A 10 percent evaluation for the Veteran's TMJ status post jaw surgery is appropriate because the VA examination found that it was manifested by limited motion of the temporomandibular articulation of the inter-incisal range of 43 mm. As such, the weight of the evidence is against assigning a rating in excess of 10 percent for TMJ status post jaw surgery. ORDER Entitlement to a disability rating in excess of 30 percent for the period prior to January 24, 2017, is denied. Entitlement to a disability rating of 50 percent, but not greater, for the period beginning January 24, 2017, for migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits Entitlement to a disability rating in excess of 10 percent for temporomandibular joint dysfunction status post jaw surgery is denied. REMAND The Veteran received a VA dental and oral examination in November 2015, but the examiner did not address the nerve damage in the jaw claim; he focused on TMJ. The same examiner submitted an addendum opinion in March 2016 and opined that the Veteran did not exhibit symptoms that he would have expected to find with nerve damage. However, the VA examiner went on to state that while he believed that the Veteran's nerve damage related back to the original malocclusion in service, he did not believe that the Veteran's nerve damage was the result of the TMJ. Thus, it is not clear whether or not this examiner found current evidence of nerve damage. Accordingly, the Board finds that further clarification is warranted. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that remand for a new examination and medical opinion as to the current existence of nerve damage related to the Veteran's original malocclusion in service is necessary in this matter. 38 C.F.R. § 4.2 (2017). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the whether the Veteran currently has any nerve damage in the jaw. The examiner must review the claims file, including this REMAND, and must note that review in the examination report. The examiner should also consider the Veteran's reports of relevant symptoms. Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran currently has nerve damage in the jaw, including but not limited to damage to the Eleventh cranial nerve. In rendering the requested opinion, the examiner should specifically consider and discuss the Veteran's contentions, lay statements of record, and medical records regarding the condition. The examiner must explain the rationale for all opinions given, citing to supporting factual data and medical literature as deemed appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 2. Thereafter, the RO should readjudicate the issue of entitlement to service connection for nerve damage in the jaw with pain and tenderness. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, and the Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs