Citation Nr: 1806608 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-05 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim for service connection for an incorrect bite (claimed as misalignment). 2. Entitlement to service connection for a bilateral foot condition. 3. Entitlement to service connection for a right knee condition. 4. Entitlement to a rating in excess of 10 percent for status post left mandibular and left maxillary fractures with temporomandibular degenerative joint disease. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2014. A transcript of the hearing is associated with the Veteran's claims file. This matter was previously before the Board in March 2016 and remanded for further development. The issues of entitlement to service connection for an incorrect bite, bilateral foot condition, and right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2003 decision, the Board denied the claim for entitlement to service connection for an incorrect bite. That decision was final. 2. Evidence submitted since the Board's August 2003 decision was not previously considered and raises a reasonable possibility of substantiating the incorrect bite claim. 3. The Veteran's inter-incisal range of the jaw has been 48 millimeters or greater and his range of lateral excursion was 8 millimeters or greater. CONCLUSIONS OF LAW 1. The August 2003 Board decision is final. Evidence received since the August 2003 rating decision is new and material, and the claim for service connection for an incorrect bite is reopened. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for a rating in excess of 10 percent for status post left mandibular and left maxillary fractures with temporomandibular degenerative joint disease have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.150, DC 9905 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence - Incorrect Bite In general, Board decisions are final on the date stamped on the face of the decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. A claim may only be reopened by submission of new and material evidence. When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If the evidence is not material, the inquiry ends and the claim cannot be reopened. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Veteran seeks to reopen a claim of entitlement to service connection for an incorrect bite following the surgical repair of his fractured mandible during service. The claim was previously denied in an August 2003 Board decision. The Board denied the claim finding that there was no competent evidence showing the Veteran had a disability manifested by an incorrect bite. The Board noted evidence of a lateral displacement of the mandible but pointed out that is one of the manifestations of the Veteran's service-connected residuals of mandibular fractures and is contemplated in the evaluation of that disability. Evidence considered at the time of the August 2003 Board decision include statements from the Veteran, a May 2003 dental examination, a April 1998 VA examination, post service medical records, and service treatment records. In March 2013, the Veteran submitted a letter from Dr. L.M. a private dentist who stated that he observed the development of a severely worn dentition which is creating fractured teeth. Dr. L.M. attributed this finding by explaining that although most of the population does not require equilibration there is a segment of the population which requires a much more extensive occlusal examination requiring treatment for the muscles and structures involved bite alignment. The Board finds this evidence is "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the Veteran's claim. The August 2003 denial was based on the finding that the Veteran did not have a clinical diagnosis of an incorrect bite. The letter submitted by Dr. L.M. indicates that the Veteran may have a misaligned bite causing fractured teeth. This newly submitted evidence satisfies the low threshold requirement for new and material evidence. See Shade at 121. Accordingly, the Veteran's claim will be reopened. De novo consideration of the claim is addressed in the remand below. Increased rating - Mandibular and Maxillary fractures Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (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 that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Veteran's service-connected status post left mandibular and left maxillary fractures with temporomandibular degenerative joint disease disability is currently evaluated under 38 C.F.R. § 4.150, Diagnostic Code (DC) 9905, which addresses the function of temporomandibular articulation. Under DC 9905, limited motion of the inter-incisal range from 0 to 10 millimeters (mm) warrants a 40 percent evaluation; from 11 to 20 mm warrants a 30 percent evaluation; from 21 to 30 mm warrants a 20 percent evaluation, and; from 31 to 40 mm warrants a 10 percent evaluation. Limited motion of the range of lateral excursion from 0 to 4 millimeters warrants a 10 percent evaluation. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150. The Veteran was initially granted service-connected for his temporomandibular disability with a noncompensable rating in an April 1994 rating decision. The rating was increased to 10 percent in a September 1998 rating decision. Following the Veteran's December 2010 increased rating claim, the Veteran was afforded a VA Dental examination in March 2011. The examiner related the history and onset of the Veteran's disability, noting that in January 1979, during a fall, the Veteran fractured his jaw after striking a concrete stoop. The Veteran's jaw was wired shut, and once removed the Veteran was treated at a dental clinic at Ft. Knox. The Veteran had 2 root canals in the area of the fracture. Following service, one of the endodontically-treated teeth required extraction and in 1996; his other endodontically-treated tooth was failing. The Veteran reported that the situation has worsened since his incident because of a bite misalignment leading to multiple teeth fractures in the last ten years. The Veteran's inter-incisal range was 47 millimeters (mm), and the lateral excursion was 7 mm for the right and 10 mm for the left. Pursuant to the Board's March 2015 remand, the Veteran was afforded a VA dental examination in July 2015. The examiner related the history of the Veteran's in-service injury and treatment. The examiner commented that the Veteran has little to no residual effects of this fracture and that he functions normally with no pain or discomfort. On physical examination, the Veteran's inter-incisal range was 48 mm, and the lateral excursion was 8 mm for the right and 8 mm for the left. Based on these findings, the Board finds that a rating in excess of 10 percent is not warranted under Diagnostic Code 9905. The inter-incisal range of motion at the VA dental examinations has never been limited to 21 to 30 millimeters . The Veteran's range of motion (ROM) was 47 mm to 48 millimeters. The Veteran has not reported experiencing any flare ups that further limit his ROM. There is no other medical evidence to the contrary. Thus, the Board finds that the criteria for a rating in excess of 10 percent for TMJ dysfunction under Diagnostic Code 9905 have not been met. Extraschedular The Veteran raised the issue of extraschedular through his former representative in June 2014. As to whether referral for an extraschedular rating is warranted, the Veteran's service-connected status post left mandibular and left maxillary fractures with temporomandibular degenerative joint disease are manifested by painful and limited range of motion. The most recent VA examination included the examiner's comment that the Veteran has little to no residual effects and he functions normally with no pain or discomfort. All symptoms, and their resulting impairment, are specifically contemplated rating schedule and 38 C.F.R. § 4.59. To the extent he may have additional disability related to fractured teeth, that would be a separate disability and is addressed in the remand below. Furthermore, there is no indication that the Veteran has experienced frequent periods of hospitalization or marked interference with employment as a result of his temporomandibular disability. Therefore, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). In reaching its conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for an increased rating, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER New and material evidence having been received, the claim for service connection for an incorrect bite (claimed as misalignment) is reopened; to this extent, the appeal is allowed. Entitlement to a rating in excess of 10 percent for status post left mandibular and left maxillary fractures with temporomandibular degenerative joint disease is denied. REMAND The Veteran is seeking service connection for bilateral foot disability and right knee disability. The Veteran was afforded VA examinations for these issues in July 2015. However, the rationale used to support the VA medical opinions are inadequate. Thus a supplemental medical opinion is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examiner for the bilateral foot disability stated that there was no medical evidence that foot pain developed as a result of knee osteoarthritis. However, it is the Veteran's contention that his service-connected left knee disability caused his bilateral foot disability. The fact that there is no medical evidence in the record is the very reason that a medical opinion was requested. On remand a supplemental medical opinion should be obtained to ascertain through medical knowledge, training and experience whether the Veteran's bilateral foot disability, diagnosed as plantar fasciitis, could be caused or aggravated by the Veteran's service-connected left knee disability. The July 2015 medical opinion provided for the Veteran's right knee disability presents with the same problem of not providing a medical opinion based upon the examiner's knowledge, training and experience. Additionally, the medical opinion for the Veteran's right knee disability does not address whether it could have been aggravated by the Veteran's service-connected left knee disability as the Board's March 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998). On remand a supplemental VA medical opinion should be obtained that adequately addresses the remand questions. In regards to the Veteran's claim of service connection for an incorrect bite, in March 2013, the Veteran submitted a letter from Dr. L.M., a private dentist, who stated that the Veteran may be a part of the population where a misaligned bite could cause fractured teeth, as the Veteran has experienced. A new VA dental examination should be obtained on remand to evaluate the new evidence the Veteran submitted. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file, with assistance from the Veteran, any VA treatment and private treatment records from August 2015 to the present. 2. After completion of the foregoing, forward the claims file and copies of all pertinent records to an appropriate VA examiner to obtain a supplemental medical opinion for the Veteran's bilateral foot disability claim. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed bilateral foot condition was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed bilateral foot condition is proximately due to (caused by) the Veteran's service-connected left knee disability? (c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed bilateral foot condition has been aggravated by the Veteran's service-connected left knee disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Forward the claims file and copies of all pertinent records to an appropriate VA examiner to obtain a supplemental medical opinion for the Veteran's bilateral foot disability claim. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (i.e. probability of at least 50 percent) that any currently diagnosed right knee condition is proximately due to (caused by) the Veteran's service-connected left knee disability? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right knee disability has been aggravated by the Veteran's service-connected left knee disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Schedule the Veteran for a VA examination with an appropriate VA examiner, other than a dental provider that treated the Veteran, to obtain a supplemental medical opinion for the Veteran's incorrect bite claim. The claims file and copies of all pertinent records should be made available to the examiner. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Does the Veteran have any incorrect bite or temporomandibular misalignment diagnosis? (b) If the answer to (a) is yes, is it at least as likely as not (greater than 50 percent probability) that the Veteran's incorrect bite diagnosis was caused or is related to his active service. The examiner is asked to discuss as necessary, Dr. L.M.'s March 2013 letter stating that a misaligned bite could cause fractured teeth like those that the Veteran has experienced. (c) If the answer to (b) is no, is it at least as likely as not (greater than 50 percent probability) that the Veteran's incorrect bite diagnosis was aggravated by the Veteran's service-connected temporomandibular disability. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Thereafter, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide the Veteran and her representative with a supplemental statement of the case and an opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs