Citation Nr: 18150577 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 05-10 517 DATE: November 15, 2018 ORDER Entitlement to an initial 20 percent rating, and no higher, for residuals of a bilateral fracture of the mandible, left angle and right angle (hereinafter “mandible fracture”) is granted. REMANDED Whether the reduction of nonservice-connected VA pension benefits effective February 1, 2004, and the discontinuance of such benefits effective May 23, 2008, was proper is remanded. FINDING OF FACT 1. Throughout the appeal period, the Veteran’s mandible fracture has resulted in limited motion of the temporomandibular joint, inter-incisal range between 50 millimeters and 22 millimeters, due to pain, weakness, fatigue, lack of endurance, and/or incoordinated movements. 2. At no time during the appeal period, has the Veteran’s mandible fracture been productive of temporomandibular articulation limited to an interincisal range of 11 to 20 millimeters or the functional equivalent thereof. CONCLUSION OF LAW The criteria for an initial 20 percent rating, and no higher, for mandible fracture have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.150, Diagnostic Codes 9904, 9905 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to May 1976. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, and the VA Pension Center in Milwaukee, Wisconsin, which, respectively, granted service connection for mandible fracture rated noncompensable from February 27, 2003, and reduced and discontinued VA pension benefits based on an apparent change in countable income. In May 2007, the Board denied an initial compensable rating prior to June 6, 2005, for the mandible fracture. The same decision granted a 10 percent rating effective June 6, 2005. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2008, the Court ordered that the Joint Motion for Partial Remand be granted and that part of the Board’s decision that denied entitlement to an initial compensable prior to June 6, 2005, and an evaluation in excess of 10 percent from June 6, 2005, for mandible fracture be remanded to the Board for compliance with the instructions in the Joint Motion. Per the Joint Motion, the Board remanded the claim in September 2009. In a January 2011 rating decision, the RO granted a 20 percent rating effective January 13, 2010, for the mandible fracture; the claim remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The matter was remanded again in September 2011. The Veteran testified at an August 2015 Board hearing in Washington, D.C. The matter was once again remanded by the Board in November 2015, as well as the claim pertaining to countable income. The Veteran waived the right to have his case remanded to the RO for review of newly submitted evidence between January 2018 and June 2018. Thus, the Board shall consider the evidence in the first instance. See June 22, 2018, waiver. Entitlement to an initial compensable rating prior to June 6, 2005, in excess of 10 percent prior to January 13, 2010, and in excess of 20 percent thereafter for mandible fracture. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court has held that VA adjudicators must analyze the evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. Moreover, where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85. The Veteran appealed the original assignment of the noncompensable evaluation following the award of service connection for mandible fracture. The noncompensable evaluation was assigned under Diagnostic Code 9904 for malunion of the mandible. The regulation provides that a noncompensable rating is assigned for slight displacement, a 10 percent rating for moderate displacement, and a 20 percent rating for severe displacement. The evaluation is dependent on the degree of motion and relative loss of masticatory function. 38 C.F.R. § 4.150. At the outset, the Board finds that the Veteran’s mandible fracture is more properly rated under Diagnostic Code 9905, for limited motion of the temporomandibular articulation as it affords him a higher rating. Under this criteria, a 10 percent rating is assigned for motion of inter-incisal range limited to 31 to 40 millimeters or when range of lateral excursion is 0 to 4 millimeters. A 20 percent rating is assigned for motion of inter-incisal range limited to 21 to 30 millimeters. A 30 percent is assigned for motion of inter-incisal range limited to 11 to 20 millimeters. 38 C.F.R. § 4.150. The Board has considered the evidence and finds that it collectively demonstrates that during the entirety of the pendency of the claim, the Veteran’s service-connected mandible fracture is manifested by symptoms that more closely approximate the criteria for a 20 percent rating under Diagnostic Code 9905, which contemplates limited motion of the temporomandibular articulation. 38 C.F.R. § 4.7. There is no clear demarcation in the file as to when the Veteran’s mandible fracture worsened in severity as the symptoms have fluctuated in severity throughout the appeal period and given the limited medical records early in the appeal period and the rudimentary VA examination afforded to the Veteran in 2003. However, it is clear from the record that masticatory dysfunction has limited temporomandibular articulation resulting in inter-incisal range variously recorded between 50 millimeters and 22 millimeters. This functional loss is the result of weakness, fatigue, pain, lack of endurance, and/or incoordinated movements of the jaw. See e.g. August 2005 VA treatment record, December 2010 and February 2011 private treatment records, January 2010 VA examination, February 2010 addendum VA examination report, August 2012 VA examination, May 2016 VA examination and addendum opinion, and March 2018 DBQ. The evidence also shows that the Veteran’s mandible fracture has required a change in dietary habits. i.e. switching to chewing soft foods. Further, since the inception of the appeal, the Veteran has complained of pain with chewing, popping and clicking of the jaw, and locking of the jaw when opened too wide. Records have also revealed that the Veteran has an abnormal closing pattern requiring a mandibular occlusal guard. See June 2005 letter and January 2010 VA examination. Therefore, resolving all doubt in the Veteran’s favor, an initial 20 percent rating is granted for mandible fracture. 38 U.S.C.§ 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, assignment of the next higher schedular evaluation of 30 percent is not warranted as the evidence does not demonstrate that the Veteran’s mandible fracture was manifested at any point during the pendency of the claim by temporomandibular articulation limited to an interincisal range of 11 to 20 millimeters or the functional equivalent thereof as contemplated in the criteria for a 30 percent rating under Diagnostic Code 9905. The Board has taken pain on motion into consideration as required by DeLuca and its progeny. The complaints of pain clearly account for the instant award of an initial 20 percent rating under Diagnostic Code 9905. In this regard, upon VA examination in 2010, after repeated motion testing and contemplating pain, fatigue and weakness, the Veteran had a max inter-incisal opening of 28 millimeters. In February 2010, the examiner tested for endurance and found that after 10 minutes of masticatory movements the Veteran inter-incisal opening ranged from 40 to 28 millimeters. On VA examination in 2012, despite pain, fatigue, weakness, and lack of endurance, inter-incisal opening went from 25 millimeters down to 22 millimeters. On VA examination in May 2016, the Veteran’s inter-incisal opening was at 31 millimeters, where pain set in, but only decreased to 25 millimeters after repetitive testing. On examination in 2018, the Veteran’s inter-incisal distance after 3 repetitions was greater than 34 millimeters, with no additional functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The Board finds that the evidence of record, including the Veteran’s subjective complaints and the results of range of motion testing, does not support a finding that the Veteran’s mandible fracture warrants greater than a 20 percent rating under Diagnostic Code 9905 at any time throughout the appeal period. The Board has considered all possible Diagnostic Codes in this case and has found that a higher rating is not warranted for loss of the mandible, non-union of the mandible or chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. 38 C.F.R. § 4.150, Diagnostic Codes 9900, 9901, 9902. While there have been some findings of possible degenerative changes of the right temporomandibular joint (see e.g. 2012 VA examination report), a higher rating is not warranted under Diagnostic Code 5003 as the disability is already predicated on range of motion. 38 C.F.R. § 4.71a. Finally, the Board notes that service connection for depression, headaches, left hip, lumbar spine, and right shoulder disabilities as secondary to the mandible fracture have been denied and not appealed. In summary, the Board finds that an initial 20 percent rating, and no higher, for mandible fracture is warranted under Diagnostic Code 9905 for limited temporomandibular articulation. 38 C.F.R. § 4.150 REASONS FOR REMAND Whether the reduction of nonservice-connected VA pension benefits effective February 1, 2004, and the discontinuance of such benefits effective May 23, 2008, was proper is remanded. The Board finds that there is not enough evidence in the file to make such a determination at this juncture and further development must be undertaken. First, the RO did not attempt reconstruction of the record as requested in the November 2015 remand. Notably, in November 2015, the Board remanded the matter to obtain missing documents, to include the February 2008 proposal to reduce and discontinue VA pension benefits, financial documents upon which the reduction and discontinuance was based, and a statement of the case. The RO was also instructed to attempt to reconstruct the remainder of the record. A November 2017 deferred rating stated that the Milwaukee Pension Center indicated (see April 2006 electronic email) that all available records were uploaded to Virtual VA but a review of the file revealed that the documents were still not of record. In November 2017, the Veteran was notified of the missing records and asked to submit any in his possession. In response, the Veteran provided a copy of a partial letter from the RO indicating that they had received verification of receipt of $245.00 in retirement pension in 2004 from the Virginia Retirement System and $3,000.00, from the Marathon Petroleum Company and thus, they were proposing to reduce his pension. The Board notes there was no mention of a discontinuance in the page provided. The January 2018 supplemental statement of the case indicated “[t]here was no information received to show that a different decision was warranted.” Consequently, corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). Further, the Veteran has disputed the reduction and discontinuance of his nonservice-connected pension benefits claiming that his income was calculated incorrectly as he only received a one-time payment from the Virginia Retirement System and did not receive $3,000.00, from Marathon Petroleum Company. The RO should prepare an audit of the Veteran’s nonservice-connected pension payments from February 1, 2004, to May 23, 2008, to include the amounts of income attributed to the Veteran during the applicable time-period and any exclusions from income. In preparing this audit, the RO should take into account a September 2008 letter from the Veteran’s attorney documenting that after attorney fees and costs, the Veteran received a net amount of $1,736.06, as a one-time final settlement in his claim against Marathon Oil Company in August 2004. There is also a copy of a IRS Form 1099-R submitted by the Veteran showing $245.10, paid to the Veteran in 2004 from the Virginia Retirement System. Finally, in the instant case, the Veteran has been awarded an initial 20 percent rating for mandible fracture effective from February 27, 2003. Thus, it appears that the Veteran was entitled to both service-connected compensation and non-service connected pension benefits between February 1, 2004, and May 23, 2008. Given the increase, the RO must determine whether pension or service-connected compensation between February 1, 2004, and May 23, 2008, was the greater benefit and recalculate entitlement to pension benefits. The matter is REMANDED for the following action: 1. The RO should attempt to reconstruct the record as it pertains to the propriety of the reduction of nonservice-connected VA pension benefits effective February 1, 2004, and the discontinuance of such benefits effective May 23, 2008. 2. The RO should prepare an audit of the Veteran’s nonservice-connected pension payments from February 1, 2004, to May 23, 2008, to include the amounts of income attributed to the Veteran during the applicable time-period and any exclusions from income. In preparing this audit, the RO should take into account a September 2008 letter from the Veteran’s attorney documenting that after attorney fees and costs, the Veteran received a net amount of $1,736.06, as a one-time final settlement in his claim against Marathon Oil Company in August 2004. There is also a copy of a IRS Form 1099-R showing $245.10, paid to the Veteran in 2004 from the Virginia Retirement System. 3. Based on the award of an initial 20 percent rating for mandible fracture effective February 27, 2003, the RO must determine whether pension or service-connected compensation between February 1, 2004, and May 23, 2008, was the greater benefit and recalculate entitlement to pension benefits accordingly. (Continued on the next page)   4. If upon completion of the above action, the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel