Citation Nr: 18143722 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 16-05 672 DATE: October 23, 2018 ORDER Entitlement to an initial rating for temporomandibular joint disease (TMJ) for the purposes of accrued benefits is denied. FINDING OF FACT The Veteran’s TMJ syndrome has not manifested with limited motion of the inter-incisal range of 11 millimeters (mm) to 20 mm or less during the appeal. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 20 percent for TMJ syndrome have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.150, Diagnostic Code 9905 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1958 to September 1965. Regrettably, in May 2016, the Veteran died during the pendency of his appeal. At this juncture, the Board would be remiss if it did not recognize the Veteran’s outstanding service. The Veteran was clearly a credit to the Marine Corps and to his family, and his service to his country is greatly appreciated. His wife has been substituted as the proper appellant in the appeal. Entitlement to an initial rating for temporomandibular joint disease (TMJ) for the purposes of accrued benefits Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran is appealing the original assignment of disability evaluations following the award of service connection for TMJ. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) The appellant is seeking an initial disability rating in excess of 20 percent for the Veteran’s TMJ syndrome. Under Diagnostic Code 9905, a 20 percent rating is warranted when the inter-incisal range is limited to 21 mm to 30 mm. A 30 percent rating is warranted when the inter-incisal range is limited to 11 mm to 20 mm. A maximum schedular 40 percent rating is assigned when the range is limited to zero mm to 10 mm. 38 § C.F.R. 4.150, Diagnostic Code 9905. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905, Note. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Veteran filed a claim for service connection for TMJ syndrome in April 2015. During his May 2015 VA examination, the Veteran reported that he was hit in the jaw by a baseball in 1959 and it has increased in severity since that time. He endorsed flare-ups, which manifested as an inability to chew. The Veteran’s right lateral excursion was limited from zero to 3.5 mm, and his left was from zero to 3.75 mm. His inter-incisal distance was limited to 30 mm. The examiner noted that the Veteran had pain to palpation and pain on movement, but no evidence of crepitus. The Veteran was unable to perform three repetitions. However, the examiner noted the Veteran was examined after repetitive use over time with the same range of motion findings noted and pain, fatigue, and weakness limiting functional ability. Additionally, the examination was conducted during a flare-up, which resulted in the same range of motion findings and repetitive use findings. The examiner noted that the Veteran’s left side TMJ was more pronounced than the right. There were no additional findings noted during the examination, including the absence of arthritis. The examiner ultimately concluded that the in-service injury, fracture of the mandible, is related to his military service. Given this evidence, the Board finds the Veteran’s TMJ syndrome has not manifested with limited motion of the inter-incisal range of 11 mm to 20 mm or less during the appeal period, especially where the evidence demonstrates that his disability is more closely rated to the 10 percent rating. See also 38 C.F.R. § 4.7. As shown by the May 2015 VA examination report, the Veteran’s symptoms do not warrant a rating in excess of 20 percent at any time during the appeal. The Board also notes that the Veteran’s lateral excursion would entitle him to a rating of 10 percent. However, as the Note to DC 9905 makes clear that inter-incisal movement shall not be combined with ratings for limited lateral excursion, this rating would not be feasible because it is not higher than the current 20 percent rating currently assigned. In light of Diagnostic Code 9905, in conjunction with 38 C.F.R. §§ 4.40, 4.45, 4.59; and the holdings in DeLuca and Sharp, the Board considers range of motion testing and medical and lay reports of the Veteran’s symptoms of pain and difficulty chewing during flare-ups, and how these translate to functional loss. Nevertheless, the Board does not find that the Veteran’s reported symptoms or the objective evidence of record warrant a rating in excess of 20 percent at any point during the appeal period, where the evidence reflects that with pain and upon flare-ups his disability is still limited to 30mm. The Board also acknowledges the lay statements from the Veteran regarding the severity of his symptoms. These statements are competent evidence of the Veteran’s symptoms as these symptoms are capable of lay observation. However, laypersons do not have the competence to render an opinion as to the level of severity of this type of disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Instead, it is the medical professionals who examined and treated the Veteran, and rendered pertinent opinions in conjunction with the evaluations. Given such, as the medical professionals have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords their opinions great probative value. The Board has considered whether a higher rating is warranted under other potentially applicable Diagnostic Codes. Medical evidence of record does not include evidence of loss of condyloid process, one or both sides (Diagnostic Code 9908); arthritis (Diagnostic Code 5003); chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible (Diagnostic Code 9900), loss of the mandible (Diagnostic Codes 9901 and 9902), nonunion and malunion of the mandible (Diagnostic Codes 9903 and 9904), loss of the ramus (Diagnostic Codes 9906 and 9907), loss of coronoid process (Diagnostic Code 9909), loss of the hard palate (Diagnostic Codes 9911 and 9912), loss of the maxilla (Diagnostic Codes 9914 and 9915), or malunion or nonunion of the maxilla (Diagnostic Code 9916). Therefore, an initial rating in excess of 20 percent the Veteran’s TMJ is not warranted. Additionally, as reflected in the lay and medical evidence of record, the symptoms throughout the period on appeal are essentially consistent. For this reason, staged ratings are not applicable. See Fenderson, 12 Vet. App. at 119. Thus, the Board finds that for the entire period on appeal, the Veteran’s service-connected TMJ more nearly approximates the currently assigned 20 percent rating. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the appellant’s claim must be denied. See 38 C.F.R. 4.3, 4.150, Diagnostic Code 9905. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel