Citation Nr: 18153219 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 18-17 699 DATE: November 27, 2018 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a left knee disability is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a right knee disability is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a bilateral ankle disability is denied. Entitlement to a rating in excess of 20 percent for residuals of a fractured jaw, claimed as temporomandibular joint syndrome (TMJ) is denied. FINDINGS OF FACT 1. A June 2015 Board decision denied the Veteran’s service connection claim for a left knee disability and the application to reopen a claim of service connection for a right knee disability. The Veteran did not appeal this decision, nor has he asserted clear and unmistakable error in this decision and it became final. 2. The evidence pertaining to the left and right knee disabilities received since the June 2015 Board decision is duplicative or cumulative of evidence previously of record, does not related to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. In an October 2015 rating decision, the RO denied the application to reopen the claim of service connection for a bilateral ankle disability. 4. The evidence pertaining to the bilateral ankle disability received since the October 2015 rating decision is duplicative or cumulative of evidence previously of record, does not related to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 5. The Veteran’s jaw disability is manifest by at worst, pain, and abscess. Range of motion tests have shown that the Veteran is able to open his mouth to 29 millimeters unassisted and lateral excursion to greater than 4 millimeters to both sides. CONCLUSIONS OF LAW 1. The June 2015 Board decision denying service connection for a left knee disability and the application to reopen a claim of service connection for a right knee disability is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.1100. 2. New and material evidence has not been received to warrant reopening the claims of service connection for a left knee disability and a right knee disability. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. The March 2012 rating decision denying service connection for a bilateral ankle disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has not been received to warrant reopening the claims of service connection for a bilateral ankle disability. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 5. The criteria for a rating in excess of 20 percent for a jaw disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.344, 4.2, 4.3, 4.7, 4.10, 4.21, Diagnostic Code 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As a preliminary matter, the Board notes that the Veteran has not been afforded VA examinations to assess the nature and etiology of his claimed right knee disability, left knee disability and bilateral ankle disability, and medical opinions addressing the etiology of these claimed disabilities have not otherwise been obtained. However, the duty to obtain an examination or medical opinion under 38 C.F.R. § 3.159 (c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board’s determination that claimant not entitled to reopening of claim). As explained below, the Board finds that no new and material evidence has been received with respect to the claims of service connection for a right knee disability, left knee disability or bilateral ankle disability. Hence, VA examinations and/or opinions are not necessary in this instance. The Board finds, for the following reasons, that new and material evidence pertaining to the claims of service connection for a right knee disability, left knee disability and bilateral ankle disability has not been received and that, accordingly, these claims may not be reopened. 1.The application to reopen the claim of entitlement to service connection for a left knee disability 2. The application to reopen the claim of entitlement to service connection for a right knee disability 3. The application to reopen the claim of entitlement to service connection for a bilateral ankle disability A June 2015 Board decision denied the Veteran’s claim of entitlement to service connection for a left knee disability and his application to reopen a claim of entitlement to service connection for a right knee disability. The Veteran did not appeal this decision; nor has he asserted clear and unmistakable error in this decision. Therefore, it is final. An October 2015 rating decision denied the Veteran’s application to reopen a claim of entitlement to service connection for a bilateral ankle disability. The Veteran did not appeal this decision; nor has he asserted clear and unmistakable error in this decision. Therefore, it is also final. In November 2016, the Veteran submitted a petition to reopen claims of service connection for a left knee disability, right knee disability and bilateral ankle disability. Evidence considered since the last final Board decision in June 2015 (right knee and left knee) and the last final rating decision in October 2015 (bilateral ankle) includes more recent VA treatment records, Veteran’s statements, and duplicate copy of the Veteran’s service treatment records that were of record when the previous decisions were issued. The updated VA treatment records reflect that the Veteran has continued to experience right knee, left knee and bilateral ankle disabilities. However, there is no new competent evidence that the claimed right knee, left knee and bilateral ankle disabilities had their onset in service; were manifest to a compensable degree within one year of the Veteran’s separation from service; are otherwise the result of a disease or injury in service; or are related to a service-connected disability. Overall, the Veteran has not submitted any new evidence indicating that his claimed knee and ankle disabilities are related to service or service-connected disability, he has not alluded to the existence of any such evidence. The Veteran’s lay statements are duplicative of the lay assertions previously of record. Overall, the Board finds that the above-cited evidence is either duplicative or cumulative of the evidence previously of record, or, if new, is either not relevant to the claims of service connection for a right knee disability; left knee disability; or bilateral ankle disability, or does not provide a reasonable possibility of substantiating either claim. Under these circumstances, the Board concludes that, even when considering the “low threshold” for determining whether evidence is new and material pursuant to Shade v. Shinseki, 24 Vet. App. 110 (2010), the criteria for reopening the claims of service connection for right knee disability, left knee disability and bilateral ankle disability are not met.   Increased Rating Entitlement to a rating in excess of 20 percent for residuals of a fractured jaw Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Disabilities are viewed, and examinations are interpreted, historically, to accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2. A higher rating is assigned if it more nearly approximates such rating. 38 C.F.R. §§ 4.7, 4.21. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (2014). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45 (2014). See also Deluca v. Brown, 8 Vet. App. 202 The Veteran contends that his service-connected residuals of a fractured jaw warrants a rating in excess of the 20 percent currently assigned. The Veteran’s service-connected disability has been evaluated under Diagnostic Code (DC) 9905 for limited motion of the temporomandibular articulation. 38 C.F.R. § 4.150. Under DC 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 rating is warranted when the inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is warranted when the inter-incisal range is limited to 11 to 20 mm; and a 40 percent rating is warranted when the range is limited to 0 to 10 mm. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, DC 9905, Note. The Veteran was afforded a VA temporomandibular joint examination in February 2018. He reported that he bites his tongue when he eats. He also reported that during flare-ups on the right side, pain causes an earache that travels down to his jaw. Flare-ups on the left side was described as “pain and abscess.” He indicated that winter wind causes an earache that travels to his jaw. In his substantive appeal, the Veteran generally asserted that the examinations were unfair and unjust but did not indicate a specific basis for this assertion. Review of the VA examination report does not reveal a basis for it being found inadequate. Upon examination, the Veteran’s range of motion for lateral excursion was greater than 4 millimeters. His range of motion for opening his mouth, measured by inter-incisal distance, was 30-34 millimeters. No pain was noted on the right side. Pain was noted on the left side; however, it was noted that the pain does not cause/result in functional loss. Repetitive-use testing resulted in a range of motion for opening his mouth limited to 21-29 millimeters; lateral excursion range of motion remained the same. No functional loss was noted. X-ray results indicated that arthritis was not present. The Board finds that the preponderance of the evidence is against granting the Veteran’s claim for a disability rating greater than 20 percent for his service-connected residuals of a fractured jaw. The evidence shows that the Veteran’s inter-incisal range does not meet the criteria for a disability rating greater than 20 percent under DC 9905. See 38 C.F.R. § 4.150, DC 9905; see also Massey v. Brown, 7 Vet. App. 204 (1994)(holding that in the application of schedular ratings, VA must only consider the factors as enumerated in rating criteria). There is no objective evidence of inter-incisal range of motion less than 20 mm, even with consideration of functional loss due to pain or flare-ups, localized tenderness or pain on palpation and clicking or crepitation. See DeLuca, 8 Vet. App. at 202. Under these circumstances, the Board concludes that the criteria for a disability rating greater than 20 percent under DC 9905 have not been met. The Veteran has competently and credibly provided lay statements as to the pain that occurs due to his service-connected fractured jaw. The United States Court of Appeals for Veterans Claims has held, however, that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.” Id. Although the Veteran’s complaints of jaw pain have been noted, the medical evidence of record fails to demonstrate that such has contributed to any additional limitation of inter-incisal motion that would warrant a higher rating under the rating schedule.   The Board has also considered the applicability of other DC’s under 38 C.F.R. § 4.150. There is no objective medical evidence of loss of, nonunion, or malunion of the mandible to warrant a higher evaluation under DCs 9901, 9902, 9903 or 9904. In addition, as the medical evidence has not demonstrated impairment of the ramus, condyloid process, coronoid process, hard palate, loss of all teeth or maxilla or that the Veteran suffers from chronic osteomyelitis or osteoradionecrosis, the Board concludes that the remaining DCs under 38 C.F.R. § 4.150 also do not apply. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel