Citation Nr: 18159633 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-52 418 DATE: December 19, 2018 ORDER Entitlement to an initial compensable rating for temporomandibular joint dysfunction (TMJ) with bruxism is denied. FINDING OF FACT The Veteran does not suffer from limited range of motion of the temporomandibular articulation or interincisal range, whole or partial ramus loss, bilateral or unilateral ramus loss, loss of condyloid process, bilateral loss of the coronoid process, loss of any portion of the hard palate, service related physical trauma, or osteomyelitis. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for TMJ with bruxism have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.150, Diagnostic Codes 9905 - 9913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army February 1967 through January 1971. He was honorably discharged. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) located in Denver, Colorado. Entitlement to an initial rating in excess of 0 percent for temporomandibular joint dysfunction (TMJ) with bruxism associated with posttraumatic stress disorder (PTSD). Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3. Under Diagnostic Code 9905, which rates limitation of temporomandibular articulation, a 10 percent rating is warranted when the range of lateral excursion is limited from 0 to 4 millimeters or the inter-incisal range is limited to 31 to 40 millimeters; a 20 percent rating is warranted when the inter-incisal range is limited to 21 to 30 millimeters; a 30 percent rating is warranted when the inter-incisal range is limited to 11 to 20 millimeters; and a 40 percent rating is warranted when the inter-incisal range is limited to 0 to 10 millimeters. 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. Under Diagnostic Code 9906, a disability rating of 20 percent is assigned for unilateral loss of the whole or part of the ramus without involvement of loss of temporomandibular articulation, and a disability rating of 30 percent is assigned for bilateral loss of the whole or part of the ramus without involvement of loss of temporomandibular articulation or for unilateral loss of the whole or part of the ramus involving loss of the temporomandibular articulation. A disability rating of 50 percent is assigned for bilateral loss of the whole or part of the ramus involving the loss of the temporomandibular articulation. 38 C.F.R. § 4.150, Diagnostic Code 9906. Under Diagnostic Code 9907, a disability rating of 10 percent is assigned for unilateral loss of less than one-half of the substance of the ramus, not involving loss of continuity. A 20 percent rating is assigned for bilateral loss of less than one-half of the substance of the ramus, not involving loss of continuity. 38 C.F.R. § 4.150, Diagnostic Code 9907. Under Diagnostic Code 9908, a disability rating of 30 percent is assigned for loss of condyloid process. 38 C.F.R. § 4.150, Diagnostic Code 9908. Under Diagnostic Code 9909, a disability rating of 20 percent is assigned for bilateral loss of the coronoid process. 38 C.F.R. § 4.150, Diagnostic Code 9909. Under Diagnostic code 9911, a disability rating of 30 percent is assigned for loss of more than half of the hard palate not replaceable by prosthesis and a disability of rating of 10 percent is assigned if the hard palate is replaceable by prosthesis. 38 C.F.R. § 4.150, Diagnostic Code 9911. Under Diagnostic code 9912, a disability rating of 20 percent is assigned for loss of less than half of the hard palate not replaceable by prosthesis and a disability of rating of 0 percent is assigned if the hard palate is replaceable by prosthesis. 38 C.F.R. § 4.150, Diagnostic Code 9912. Under Diagnostic Code 9913, which rates loss of teeth, where the lost masticatory surface cannot be restored by a “suitable prosthesis,” a maximum 40 percent disability rating is warranted for the loss of all teeth. For the loss of all upper teeth or all lower teeth, where the lost masticatory surface cannot be restored by suitable prosthesis, a 30 percent rating is warranted. For the loss of all upper and lower posterior or upper and lower anterior teeth, a 20 percent rating is warranted. For the loss of all upper anterior or lower anterior teeth, or for the loss of all upper and lower teeth on one side, a 10 percent rating is warranted. Where the loss of masticatory surface can be restored by suitable prosthesis, a noncompensable (0 percent) rating is warranted. See 38 C.F.R. § 4.150, Diagnostic Code 9913. However, the Note immediately following states that “these ratings apply only to bone loss through trauma or disease such as osteomyelitis and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling.” Id. The Federal Circuit defines “service trauma” as “an injury or wound produced by an external physical force during the service member’s performance of military duties.” This definition may encompass unintended results of treatment due to medical malpractice; however, it excludes the intended result of proper medical treatment. Nielson v. Shinseki, 607 F.3d. 802, 808 (Fed. Cir. 2010). In October 2015 the Veteran submitted the medical opinion of T.A., a psychiatric mental health nurse who opined the Veteran’s bruxism and injuries were related to his PTSD. In October 2015 Dr. T.S. submitted a medical opinion stating the Veteran has no molar support and compromised premolar support. The Veteran’s non-crowned teeth have worn down into dentin. Most of the Veteran’s teeth have exposed pulp chambers and he has lost 100 percent of enamel coverage. The Veteran’s bite has collapsed and he experienced frequent headaches. Dr. T.S. opined it is medically necessary the Veteran pursue dental treatment. The Veteran underwent a VA examination in January 2016. The examiner diagnosed the Veteran with bruxism and noted associated loss of teeth. The Veteran’s mandible, maxilla, teeth, mouth, lips, and tongue were examined and exhibited no anatomical loss or bony injury. There was no evidence of osteomyelitis or osteoradionecrosis of the mandible. There were also no signs of benign or malignant neoplasm or metastases related to bruxism. The examiner noted the Veteran had a pop during opening and closing in the right temporomandibular (TM) joint and tenderness in the right lateral pterygoid muscle. The examiner opined the Veteran loss of teeth was due to normal extraction. The bruxism was likely due to stress associated with PTSD. The Veteran was diagnosed with TM joint dysfunction in January 2016. The Veteran reported flare-ups of the right TM joint with associated jaw locking and headaches. He denied experiencing flare-ups in the left TM joint. The examiner opined the Veteran exhibited poor bite because of bruxism and limiting use of the right side for chewing. The Veteran’s in-incisal distance was 55 millimeters. His right lateral excursion was 10 millimeters and left lateral excursion was 7 millimeters. The examiner noted the Veteran localized tenderness or pain on palpitation of the right TM joint and clicking of the right TM joint. The Veteran’s discomfort was rated 3 out of a 10. The Veteran did not exhibit localized tenderness or pain on palpitation of the left TM joint and clicking of the left TM joint. The Veteran successfully performed repetitive use testing on both TM joints and no additional loss of function or range of motion (ROM) was observed. The examiner added that pain, weakness, fatiguability or incoordination does not significantly limit functional ability. Further, while the right TM joint was tested during a non-flare up period, the examiner indicated that the result was medically consistent with the Veteran’s statements describing functional loss during flare up. Pain caused by flare ups limit functional ability in the right TM joint. The examiner did not find degenerative or traumatic arthritis or that the Veteran’s disability impacted his ability to work. At a Board hearing in April 2017 the Veteran, represented by counsel, requested bruxism be evaluated as a “stand-alone service connected disability.” The Veteran asserted he has tooth loss and complete loss of enamel as a result of bruxism which caused him to grind and break teeth. The Veteran argued the present bruxism should be evaluated at a higher rating under Diagnostic Code 9913. He argued that his service-connected PTSD should be sufficient to satisfy the Code’s “trauma” requirement. The Veteran acknowledged that the non-compensable rating for TMJ was warranted because he exhibited normal ROM and no painful ROM. The Veteran submitted a Disability Benefits Questionnaire (DBQ) in June 2017. Dr. T.P. stated the Veteran exhibited normal range of motion for lateral excursion and opening mouth as measured by interincisal distance. There was no objective evidence of painful motion. The Veteran successfully performed repetitive-use testing. Post-test ROMs for lateral excursion and interincisal distance were normal. The Veteran did not exhibit additional limitation in ROM of either TM joints following repetitive-use testing. The examiner noted the Veteran has functional loss or impairment of either TM joint. However, he then stated that the Veteran has no functional loss or impairment for either TM joint. The Veteran exhibited pain on palpitation of joints or soft tissue and clicking of both TM joints. The examiner did not observe any scars or degenerative or traumatic arthritis. Dr. T.P. opined the Veteran’s condition is primary parafunction and severe occlusal disease with secondary temporomandibular joint disease. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A higher evaluation for the Veteran’s disability is not warranted. There is no evidence the Veteran suffers from limited ROM of temporomandibular articulation or interincisal range; loss of the whole or part of the ramus without involvement of loss of temporomandibular articulation; bilateral loss of the whole or part of the ramus without involvement of loss of temporomandibular articulation or unilateral loss of the whole or part of the ramus involving loss of the temporomandibular articulation; bilateral loss of the whole or part of the ramus involving the loss of the temporomandibular articulation; unilateral loss of less than one-half of the substance of the ramus, not involving loss of continuity; bilateral loss of less than one-half of the substance of the ramus, not involving loss of continuity; loss of condyloid process; bilateral loss of the coronoid process; and loss of any portion of the hard palate. The Veteran asserts he has significant loss of teeth and that his PTSD satisfies the trauma requirement under Diagnostic Code 9913. The Board does not agree. DC 9913 applies only where the Veteran has experienced an injury or wound produced by an external force during military service. A review of the record does not support a finding the Veteran’s current disability was a result of trauma. Stress-related grinding is simply not the same and by no means is contemplated by the trauma necessary to invoke a rating under DC 9913. Alternatively, the Veteran may be rated under DC 9913 if tooth loss was caused by osteomyelitis. The Veteran does not carry a diagnosis of osteomyelitis. Consideration has been given to the Veteran’s personal belief that a higher rating should be assigned. He is competent to report his current symptoms, such as teeth grinding, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran’s assessment of the severity of his disability. The examinations also took into account the Veteran’s subjective statements with regard to the severity of his physical disability. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable or separate evaluation. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel