Citation Nr: 1808737	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  11-94 126A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an increased disability rating for service-connected temporomandibular joint dysfunction (TMJ), currently evaluated as 40 percent disabling.

2.  Entitlement to an initial disability rating in excess of 30 percent for service-connected right facial trigeminal neuralgia associated with TMJ.

3.  Entitlement to an initial disability rating in excess of 50 percent from May 24, 2006, and in excess of 70 percent on and after May 16, 2007, for service-connected panic disorder with agoraphobia and major depressive disorder associated with TMJ.

4.  Entitlement to a total disability rating based upon individual unemployability (TDIU).



REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from December 1996 to July 2004. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

Regarding a TDIU, although the record does not contain a timely substantive appeal for this issue, a TDIU claim is part and parcel of an increased rating claim when raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  At the Board hearing, the Veteran has raised the issue of a TDIU due, in part, to his disabilities currently on appeal.  As such, the Board will consider the issue of a TDIU at this time.

The issues of entitlement to an increased rating for a right facial trigeminal neuralgia associated with TMJ and entitlement to an increased disability rating for panic disorder with agoraphobia and major depressive disorder associated with TMJ are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's TMJ is currently assigned the maximum, 40 percent schedular evaluation for limitation of inter-incisal motion.

2.  The Veteran was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities as of May 24, 2006.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 40 percent for TMJ are not met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.321, 3.951, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.150, Diagnostic Codes 9900-9915 (2015).

2.  As of May 24, 2006, the criteria for a TDIU have been met.  38 U.S.C. 
§§ 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in September 2017.  The Board finds that all requirements for hearing officers have been met.  38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

II. Increased Rating for TMJ

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017).  The Schedule is primarily a guide in the evaluation of disability 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.A. § 1155; 38 C.F.R. § 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2017). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999). 

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

In this case, as the Veteran filed his increased rating claim in January 2007, VA must review the evidence of record from February 2006, to determine if there was an ascertainable increase in the Veteran's temporomandibular joint dysfunction.  

The Board has reviewed the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (providing that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's service-connected TMJ is currently rated 40 percent disabling under Code 9905, for limitation of motion of the temporomandibular joint, effective February 12, 2007.  Under DC 9905, 40 percent is the maximum evaluation provided for.  Limitations can be rated as either inter-incisal impairment (opening and closing) or lateral excursion impairments (side to side).  The criteria specifically state that both cannot be rated simultaneously.  38 C.F.R. § 4.150, Code 9905, Note.  Lateral excursion limited to 0 to 4 mm is rated 10 percent disabling; this is the sole rating assignable for this manifestation.  Limitations of inter-incisal motion are rated up to a maximum of the currently assigned 40 percent evaluation for a range of motion of between 0 and 10 mm.  38 C.F.R. § 4.150, Code 9905.  Thus, despite any evidence, no higher evaluation is permitted under this code.

The Board has considered other potentially applicable diagnostic codes.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  But here, the evidence of record does not show loss of any portion of the mandible or maxilla, malunion or nonunion of the mandible or maxilla, osteomyelitis, or loss of ramus.  See 38 C.F.R. § 4.150, Diagnostic Codes 9900, 9901, 9902, 9907 (2017).  Accordingly, no higher evaluation is warranted.

Regarding this issue, neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In sum, the Board concludes that the Veteran did not meet the criteria for increased ratings during the period on appeal for his service-connected temporomandibular joint dysfunction.  As the preponderance of the evidence is against the assignment of any higher rating, the claim must be denied.  38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III.  TDIU

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience.  See 38 C.F.R. 
§§ 3.340, 3.341, 4.16.  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. 

If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability.  If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16.  Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history.  38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  See Bowling v. Principi, 15 Vet. App. 1 (2001). 

In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017).

The Board finds that the Veteran met the schedular criteria requirements under 
38 C.F.R. § 4.16(a) beginning May 24, 2006. Specifically, and in connection with the Board's decision herein, the Veteran is service connected for temporomandibular joint dysfunction at 40 percent from February 12, 2007; panic disorder with agoraphobia and major depressive disorder associated with temporomandibular joint dysfunction at 50 percent from May 24, 2006, and 70 percent from May 16, 2007; headaches associated with temporomandibular joint dysfunction at 50 percent from May 24, 2006; right facial trigeminal neuralgia associated with temporomandibular joint dysfunction at 30 percent from February 12, 2007; residual of a right ankle fracture at 10 percent from July 15, 2004; essential hypertension at 10 percent from July 15, 2004; tinnitus at 10 percent from July 15, 2004; right hearing loss at a noncompensable rating from July 25, 2012; erectile dysfunction at a noncompensable rating from July 15, 2004; and hemorrhoids due to medication associated with temporomandibular joint dysfunction at noncompensable rating from May 24, 2006.  Therefore, beginning May 24, 2006, the Veteran had multiple disabilities ratable at a combined evaluation of 90 percent.  As such, the Board finds that the minimum schedular criteria for TDIU are met as of May 24, 2006.

After a review of all the evidence, the Board concludes that the evidence indicates the Veteran's disabilities alone are of sufficient severity to produce unemployability.  The Veteran has asserted he was last employed in 2004 while in the military.  He has stated he is unable to be employed due to the frequency and severity of his migraines and the right facial trigeminal pain.  

In a June 2013 VA examination for his service-connected headaches, the VA examiner opined that the Veteran was unemployable for both physical and sedentary work.  The examiner noted that this was due to incapacitation and severe functional impairment that is caused by the headaches and the trigeminal neuralgia.  Given, this opinion, coupled with the Veteran's evaluations of 50 percent for headaches, which contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and 40 percent for neuralgia which contemplates incomplete severe paralysis, the Board finds that the criteria have been met.  Accordingly, entitlement to TDIU is granted, effective May 24, 2006.  


ORDER

Entitlement to an increased disability rating in excess of 40 percent, effective February 12, 2007, for TMJ is denied.

TDIU is granted effective May 24, 2006, subject to the laws governing the award of monetary benefits.


REMAND

First, regarding the claim for an increased evaluation for right facial trigeminal neuralgia, remand is required for clarification.  Remand may be required if the record before the Board contains insufficient medical information for evaluation purposes).  Littke v. Derwinski, 1 Vet. App. 90, 93 (1990).  Although the Veteran has complained of severe pain and sensitivity on both sides of his face, service connection was granted for the right side.  The 2016 VA examiner noted evidence of left side involvement.  Furthermore, the applicable diagnostic code directs that the cranial nerve are for unilateral involvement and that when the issue is bilateral, the evaluations should be combined but without the bilateral factor.  See 38 C.F.R. § 4.124a, Diseases of the Cranial Nerves.  It isn't clear if this is appropriate in this case or not and thus medical clarification is required.  

Second, regarding the Veteran's claim an increased disability rating for panic disorder with agoraphobia and major depressive disorder associated with TMJ, remand is required to obtain relevant medical records.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017).  This includes making reasonable efforts to obtain relevant private medical records.  38 C.F.R. § 3.159(c)(1).  The Veteran testified at the September 2017 Board hearing that he sees his private psychiatrists on a monthly basis.  The Board notes that these records are not of record.  As such, all outstanding records must be obtained and associated with the claims file.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include his private provider treating him for his panic disorder with agoraphobia and major depressive disorder.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

2.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative.  

3.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected right facial trigeminal neuralgia.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ).  The examiner must also clarify whether this disability affects the left side of the face and whether there is bilateral involvement of the trigeminal nerve(s).

4.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected panic disorder with agoraphobia and major depressive disorder.  The entire claims file must be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  The examiner must utilize the appropriate DBQ.  

5.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

6.  Ensure compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

7.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs