Citation Nr: 18154013 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 12-16 847 DATE: November 29, 2018 ORDER Entitlement to a rating for temporomandibular joint syndrome with myofascial pain and headaches (TMJ) in excess of 20 percent prior to May 16, 2017, and to a rating in excess of 30 percent thereafter is denied. FINDING OF FACT Prior to May 16, 2017, the Veteran’s TMJ manifested with an inter-incisal range between 21 to 30 millimeters (mm) with pain and headaches not characterized by prostrating attacks; from May 16, 2017 the Veteran’s TMJ manifested with an inter-incisal range between 11 to 20 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods and with pain and headaches not characterized by prostrating attacks. CONCLUSION OF LAW The criteria for entitlement to a rating for temporomandibular joint syndrome with myofascial pain and headaches (TMJ) in excess of 20 percent prior to May 16, 2017, and to a rating in excess of 30 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.124a, Diagnostic Code (DC) 8100, 4.150, DC 9905. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty July 24 to November 26, 1985 and March 1987 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing in May 2013 before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In February 2016 the Board denied the issue of entitlement to a disability rating in excess of 20 percent for TMJ with myofascial pain and headaches. Thereafter, the Veteran appealed the decision denying a disability rating in excess of 20 percent for TMJ with myofascial pain and headaches to the United States Court of Appeals for Veterans Claims (Court). In a January 2017 Joint Motion for Partial Remand, the Secretary of VA and the Veteran moved the Court to vacate the February 2016 decision with respect to this issue only, which was granted in a February 2017 Order. The Board remanded the case in April 2017 to comply with the Court’s orders. Pursuant to the Remand, the RO scheduled a VA examination for the Veteran to determine the severity of the Veteran’s headaches. After several unsuccessful attempts to contact the Veteran, an exam was scheduled for October 6, 2017. The Veteran failed to attend the scheduled exam and did not provide good cause as to his failure to so attend. The Veteran is reminded that the duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of the Veteran’s cooperation in attending his scheduled medical examination, the issues remanded by the Court will be decided based on the evidence of record. See 38 C.F.R. §§ 3.326, 3.655. Additionally, the Board finds that the RO has substantially complied with the prior Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequently, in a September 2018 rating decision, the RO increased the rating for the TMJ from 20 percent to 30 percent effective May 16, 2017. As the RO’s actions do not constitute a full grant of the benefit sought and the Veteran has not expressed satisfaction with the increased ratings, the issue remains on appeal. Ab v. Brown, 6 Vet. App. 35, 39 (1993). Entitlement to a rating for temporomandibular joint syndrome with myofascial pain and headaches (TMJ) in excess of 20 percent prior to May 16, 2017, and to a rating in excess of 30 percent thereafter The Veteran contends that his disability rating for TMJ should be increased due to other chronic pain and multiple sclerosis diagnosed in June 2012. He added that he was admitted to the hospital and stays in constant pain. See VA Form 9 dated June 2012. Disability rating are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded. Ab, 6 Vet. App. at 39. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Secretary of Veterans Affairs, 4 Vet. App. 225 (1993). In a decision, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Prior to May 16, 2017 According to the RO’s August 2010 rating decision, the Veteran’s 20 percent rating was continued pursuant to 38 C.F.R. § 4.150, DC 9905. The applicable rating criteria for dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective on September 10, 2017, and the “new” schedular criteria are applicable as of that date. See 82 Fed. Reg. 36080 (August 3, 2017). As such, the Board will consider the “old” scheduler criteria up to May 16, 2017. Under the “old” schedular criteria, DC 9905, limitation of motion of the TMJ warrants a 10 percent rating if there is limitation of inter-incisal range of motion of 31 to 40 mm; or limitation range of lateral excursion of 0 to 4 mm. A 20 percent rating is warranted when inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is warranted when inter-incisal range is limited to 11 to 20 mm; and a maximum 40 percent rating is warranted when inter-incisal range is limited to 0 to 10 mm. A note to DC 9905 provides that ratings for limited inter-incisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. Under the “new” schedular criteria, DC 9905, inter-incisal range of 0 to 10 mm of maximum unassisted vertical opening; with dietary restrictions to all mechanically altered foods warrants a 50 percent rating; without dietary restrictions to mechanically altered foods warrants 40 percent. Inter-incisal range of 11 to 20 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants 40 percent; without dietary restrictions to mechanically altered foods warrants 30 percent. Inter-incisal range of 21 to 29 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 40 percent; with dietary restrictions to soft and semi-solid foods warrants 30 percent; without dietary restrictions to mechanically altered foods warrants 20 percent. Inter-incisal range of 30 to 34 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 30 percent; with dietary restrictions to soft and semi-solid foods warrants 20 percent; without dietary restrictions to mechanically altered foods warrants 10 percent. Lateral excursion range of motion of 0 to 4 mm warrants 10 percent. Ratings for limited inter-incisal movement are not combined with ratings for limited lateral excursion. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. For VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. The Veteran was afforded a VA examination for his TMJ in June 2009. The objective findings of the exam were as follows: the Veteran’s inter-incisal vertical opening is greater than 50 mm; his right lateral excursion of the mandible is 8 mm; and his left lateral excursion of the mandible is 9 mm. X-ray findings indicated that all the teeth were present and there was no excessive loss of bone tissue. Diagnostics tests on palpitation showed that the right TMJ was tender and the left TMJ was more tender to palpitation especially upon opening and closing of the mouth. Also, there was popping on the left TMJ when the patient opened and closed his mouth. The examiner diagnosed the Veteran with myofascial pain due to bruxism or daytime clenching and partial lateral displacement of disk with reduction on the left temporomandibular joint dysfunction. An addendum to the exam was completed on June 2010 because the Veteran’s claim file was not available to review. Upon review of the claims file, the examiner found that the Veteran had a TMJ injury in-service and that the current condition was most likely caused by the TMJ injury while on active duty. The Veteran was afforded an additional dental examination in December 2009. The examiner reviewed the Veteran’s file to render his opinion. The examiner opined that the Veteran’s headaches are at least as likely as not related to, caused by, or aggravated by the service-connected TMJ. As to the Veteran’s myofascial pain, the examiner opined that it is at least likely as not related to, caused by, or aggravated by the service-connected TMJ. A rationale was not provided for the opinions. The Veteran was afforded a neurological examination on December 2009. The Veteran reported that he had headaches for at least 10-15 years, but they increased in the past two years. He added that he has a headache when waking up in the morning about every 2-3 days. The Veteran reported to the doctor that he rarely has any nausea or vomiting associated with these headaches, no history of photophobia or an aura with the headaches. The Veteran’s neurological testing was normal. The examiner diagnosed the Veteran with chronic tension headaches and opined that the headaches are related to or caused by his service-connected TMJ and chronic sinusitis. He further added that the headaches did not sound like migraine headaches. The Veteran’s VA treatment records show complaints for headaches and pain associated with TMJ dating back to 2008. The Veteran visited the VA clinic countless times since 2008 for pain and headache treatment. However, the records do not show that the Veteran’s inter-incisal range was less than 21 to 30 mm, which is required for higher rating. Further, while the VA treatment records show that the Veteran noted TMJ pain, he was not following up with the dental clinic appointments or using his prescribed retainer for bruxism. The Veteran was advised to follow up with the dental clinic several times by primary care practitioners. Due to the Veteran’s failure to seek recommended follow-up treatment regarding the TMJ condition, it is difficult to ascertain the severity of his TMJ and whether an increased rating is warranted. Based on the evidence of record, the Board concludes that a rating in excess of 20 pursuant prior to May 16, 2017 is not warranted. The Board acknowledges that the Veteran’s headaches may be entitled to separate compensable ratings. DC 8100 provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as non-compensably (0 percent) disabling. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. Prostrating means “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” Completely prostrating means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. See VA Adjudication Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section N, Topic 7, Block b. Based on the evidence of record, the Board finds that the headaches are not characterized by prostrating attacks. The evidence shows that the Veteran has been complaining of headaches for the duration of the appeal, if not longer. The Veteran’s VA treatment records detail countless complaints and emergency room visits due to chronic headaches. However, the symptoms associated with the headaches do not show extreme exhaustion, powerlessness, debilitation or incapacitation. During his numerous visits to the VA clinic and emergency room, he has rarely reported symptoms such as nausea, sensitivity to light, or the inability to engage in activities. In a February 2010 emergency room visit, the Veteran denied nausea, vomiting, photophobia, phonophobia, and blurred vision as symptoms accompanying his headaches. During a September 2010 primary care clinic follow-up visit, the Veteran said that lights and noise bother him during his headaches, which occur about three time a week. At an October 2010 visit to the primary care clinic, the Veteran reported that his headaches keep him up at night and are accompanied by earaches, ringing in the ears, and neck pain. The examiner noted that the Veteran’s description of his headaches was atypical for migraine attacks. In August 2009, the Veteran reported nausea with the headaches, but the headaches disappeared with sleep. In July 2008, the Veteran reported that on one occasion he felt like he might black out from his headache, but that the headaches only last about 10 minutes. The Veteran did report nausea during visits in January and February 2010. It should be noted that during most of the visits to the clinic or emergency room, the Veteran reported that his headaches improve with the use of hydrocodone. Additionally, nothing in the record indicates that the headaches resulted in functional impairment, with the exception of the Veteran reportedly needing breaks to be able to work as a chef. See VA Treatment Records February 2010. Also, the Veteran has not stated that his headaches alone render him unable to engage in ordinary activities. While the Veteran has a lengthy history of chronic headaches which were found to be related to his TMJ pain, the evidence of record does not show that the headaches were prostrating. The symptoms reported by the Veteran do not indicate that the headaches are so disabling that the Veteran was unable to engage in ordinary activities. Accordingly, the Board concludes that a separate compensable rating under DC 8100 prior to May 16, 2017 is not warranted. In reaching the above decisions, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert, 1 Vet. App. at 54; 38 U.S.C. § 5107. 2. From May 16, 2017 According to the RO’s September 2018 rating decision, the Veteran’s TMJ disability rating was increased from 20 percent to 30 percent effective May 16, 2017 based on a 20 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. The Board will consider the “old” schedular up to September 10, 2017 and the “new” schedular after September 10, 2017 to the present. The Veteran was afforded an updated VA examination in May 2017. The examiner diagnosed the Veteran with arthralgia of TMJ, myositis unspecified, and limited motion of the jaw. The Veteran reported that his jaw and head hurt all of the time and his mouth pops when opened. The Veteran denied a history of migraines. Functional loss was noted as the Veteran sometimes cannot chew or talk because of jaw pain. Range of motion testing found a right and left lateral excursion of 5 mm with pain noted on the left side. Inter-incisal distance was 30 mm. Pain with chewing was not reported. Pain on palpitation and clicking when opening his mouth was noted with the left side of the jaw. With observed repetitive use, the inter-incisal distance was 26 mm with pain reported on the left side only. The left lateral excursion after three repetitions was 5 mm. With repeated use over time, the inter-incisal distance was 20 mm. Pain was again noted on the left side only. The left lateral excursion was 3 mm. A March 2018 addendum opinion was completed for the May 2017 VA examination. The VA examiner added that the Veteran’s treatment records are silent of any dietary restrictions to mechanically altered foods. The Veteran was scheduled for a separate examination to determine the severity of his headaches in October 2017. However, the Veteran failed to show for the examination. After several attempts by the examiner to contact the Veteran and his spouse, the examiner rendered an opinion based on a review of available records. Upon review, the examiner opined that the Veteran’s headaches were not characterized by prostrating attacks of headache pain. The rationale for the opinion was based on stable MRI findings and normal neurological exams. The examiner found that headaches were not mentioned as a symptom on any of the Veteran’s neurology visits in the prior two years. Based on the evidence of record, the Board finds that the Veteran is not entitled to a rating above 30 percent under the old or new scheduler criteria. Under the old criteria, the evidence shows that the Veteran’s inter-incisal range is 20 mm after repeated use, not under 10 mm as needed for a 40 percent rating. Under the new criteria, the evidence shows that the Veteran has an inter-incisal range of 20 mm without any dietary restrictions to mechanically altered foods. The Veteran only reported that he sometimes cannot chew due to pain. Accordingly, the Board concludes that a rating in excess of 30 percent after May 16, 2017 is not warranted. As to the headaches, the Board finds that the Veteran’s headaches are not characterized by prostrating attacks. The Veteran was afforded an opportunity to report the severity and frequency of his headaches; however, the Veteran failed to attend to the exam without good cause. The Board finds the October 2017 examination to be highly probative as the examiner evaluated the entirety of the claims file and rendered an opinion based on the Veteran’s neurological and MRI testing results. The examiner found that although the Veteran has complained of headaches for many years, for the past two years he has not reported headaches as a symptom at his neurology appointments. Further, the Veteran’s MRIs and neurological exams have been stable and normal. Also, during the May 2017 VA examination, the Veteran denied a history of migraine headaches. Accordingly, the Board concludes that a separate compensable rating under DC 8100 is not warranted. In reaching the above decisions, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Id. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel