Citation Nr: 1814928	
Decision Date: 03/13/18    Archive Date: 03/19/18

DOCKET NO.  14-09 379	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to an initial rating in excess of 20 percent for limitation of motion for temporomandibular articulation.


ATTORNEY FOR THE BOARD

E. Kunju, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 2003 to March 2004 and from May 2007 to July 2010. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in San Diego, California.

In February 2013, the Veteran testified before a Decision Review Officer (DRO). A transcript of the hearing has been associated with the claims file.  

In June 2016, the Board remanded this claim for additional development. It has since been returned to for further appellate consideration.

A claim for an increased rating may encompass a claim for entitlement to a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that in an August 2014 rating decision, the Veteran was granted service connection for total disability rating based on individual unemployability effective August 1, 2012. That decision is considered a full grant of benefits sought on appeal, and the appeal concerning that claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). 


FINDING OF FACT

Throughout the appeal period, the Veteran's limitation of motion for temporomandibular articulation is manifested by the inter-incisal range greater than 20mm.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for limitation of motion for temporomandibular articulation have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 4.40, 4.45, 4.150, Diagnostic Code 9905 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

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 Board also finds that there has been compliance with the prior June 2016 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

Entitlement to an Increased Rating for Limitation of Motion for Temporomandibular Articulation

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. § 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). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all those 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." 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."  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

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.

The Veteran's temporomandibular joint (TMJ) dysfunction is currently rated 20 percent under 38 C.F.R. § 4.150, Diagnostic Code 9905. Under Diagnostic Code 9905, temporomandibular articulation with limited motion of the range of lateral excursion of 0 to 4 mm warrants a 10 percent evaluation. Additionally, limited motion of the inter-incisal range of 31 to 40 mm warrants a 10 percent evaluation, 21 to 30 mm warrants a 20 percent evaluation, 11 to 20 mm warrants a 30 percent evaluation, and 0 to 10 mm warrants a 40 percent evaluation. A Note to this Diagnostic Code states that 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.

The Veteran is separately service-connected for trigeminal neuralgia with myofascial pain and hypersensitivity to the maxillary sinus and any such symptoms are thus not considered herein.  

The record contains VA treatment records and private treatment records throughout the period on appeal indicating the Veteran's complaints of TMJ pain and functional loss. However, the records do not provide evidence that contradicts the findings of the VA examinations. 

In an August 2010 VA examination, the Veteran reported that she had difficulty chewing all type of foods. She reported that if she eats or talks too much, the pain is greater. She reported that she eats only soft food that are not cold, hard or chewy. Upon examination, left and right TMJ were positive to palpation, right worse than left. The Veteran was noted as having difficulty opening or moving her mouth within normal range of mandibular motion. Due to the decreased vertical opening she was noted as unable to eat certain types of food that would require large mouth opening. Inter-incisal range of motion was 23mm, right lateral movement was 4mm, and left lateral movement was 3mm. 

The Veteran was afforded a VA examination in February 2012. The Veteran was noted as having an inter-incisal motion between 21 and 30mm. In a March 20102 addendum, the examiner clarified that there was no additional loss of motion due to pain or other symptoms after repetitive use.

The record contains a May 2012 examination from private orthodontist, Dr. A.D. Dr. A.D. Dr. A.D. noted that the Veteran's maximum opening was 20mm. Dr. A.D. noted that the Veteran experienced pain, subluxation right and left, limited opening and bruxism. 

In February 2013, the Veteran attended a hearing before a DRO. The Veteran reported pain in the jaw and that she was having a difficult time chewing normally. The Veteran reported that she had to eat very soft food and could not eat anything hard. 

The Veteran was again afforded a VA examination in October 2016. The Veteran reported that after her jaw surgery in 2009, her condition has worsened. The Veteran reported that prior to her surgery she could open at 44mm and now she experienced a loss of opening to 23mm, loud noise on joints, pain opening and muscle spasms in the face. The Veteran reported that she had flare-ups of the right and left TMJ that could be described as clenching her teeth at night when stressed which made the area sore and more painful. The Veteran reported functional loss or functional impairment as the inability to open no more than 23mm and trouble eating and chewing. Pain was noted on examination for mouth opening and left lateral excursion with bilateral evidence of localized tenderness or pain on palpation of the joint. Bilateral objective evidence of crepitus or clicking of the joints was noted. The Veteran was able to perform repetitive use testing and pain, fatigue, weakness, lack of endurance and incoordination were noted. Regarding flare-ups, pain, fatigue, weakness, incoordination, and lack of endurance were noted. The Veteran was noted as not knowing her range of motion during flare-ups on the inter-incisal opening and right lateral and left lateral excursion. The examiner explained that there was a progression in that the diagnosis was now bilateral temporomandibular joint disorder.  Initial range of motion measurements found a 23mm inter-incisal distance, right lateral excursion of 6 millimeters, and left lateral excursion of 7mm. Range of motion on repetitive use testing were the same as the initial range of motion.

The Board finds that based on the foregoing, entitlement to a disability evaluation higher than 20 percent is not warranted unless there is limitation of motion with an inter-incisal range of 11 to 20mm. Although the Veteran was noted as having a 20mm maximum opening in May 2012, the Veteran has been examined prior to and after, and herself has reported an opening of 23 mm. As such, the preponderance of the evidence demonstrates that the Veteran does not have an inter-incisal opening less than 23 mm and entitlement to an evaluation higher than 20 percent for temporomandibular articulation is not warranted.  

In reaching this conclusion, the Board considered functional loss due to symptoms such as pain, flare-ups, and weakness that cause additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40  (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the Board accepts the Veteran's assertions that her TMJ causes her to experience pain, the Board has taken this into account in its consideration of the Veteran's range of motion. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Furthermore, even when the Veteran's complaints of pain are considered, the Board concludes that the overall manifestations of her TMJ generally do not demonstrate a degree of functional loss so as to warrant a higher rating than 20 percent. Moreover, even if the Veteran's range of motion is limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Therefore, the criteria for an increased rating in excess of 20 percent have not been met.

The Veteran has not 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).


ORDER

Entitlement to an increased rating in excess of 20 percent for limitation of motion for temporomandibular articulation is denied.



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs