Citation Nr: 1816355 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 11-02 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 10 percent for residuals of a left mandible fracture with interference to mastication, and limitation of motion ("jaw disability"). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2017 the Board remanded this matter for additional development to include obtaining a VA examination. The Board finds that the remand directives have been substantially complied with and therefore will adjudicate the matter. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before the undersigned Veterans Law Judge in an April 2017 video conference hearing. A transcript of that hearing has been associated with the file. FINDING OF FACT Throughout the appeal period, the Veteran's jaw disability has been productive of displacement causing moderate anterior or posterior open bite, with temporomandibular articulation limited to no less than 35milimeters(mm) of inter-incisal range, lateral excursion limited to no less than 7 millimeters(mm), and with flare-ups of pain exacerbated by chewing, and lock jaw upon yawning. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a left mandible fracture with interference to mastication, and limitation of motion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.150, Diagnostic Codes 9999- 9904, 9905 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When assessing the present level of disability for the period on appeal, staged ratings are appropriate when the facts show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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. 38 C.F.R. § 4.40 (2017). When evaluating disabilities that are based on limited motion, it is necessary to consider both the schedular criteria and any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85(1997). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The Board must assess the credibility, and therefore the probative value, of the evidence of record as a whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). While the Veteran is competent to report certain obvious symptoms of disability, he is not competent to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has been assigned a 10 percent disability rating for his service-connected jaw disability under the criteria of 38 C.F.R. § 4.150(schedule of ratings - dental and oral conditions) Diagnostic Codes (DC) 9999-9904. Diagnostic Codes 9904 and 9905 have been applied. The Veteran was first service connected under DC 9904 and assigned a noncompensable disability rating, as the RO stated no malunion or restriction of excursion of the jaw was indicated. See December 1992 rating decision. In January 1993 he was assigned a 10 percent disability rating for his reported pain when chewing and interference with mastication under DC 9905. The RO noted that there was definite limitation of motion of the jaw, but measurements were not provided so a higher rating was not supported. See January 1993 rating decision. The Board notes that as of September 10, 2017, the language of DCs for dental and oral conditions were revised to ensure that the rating schedule uses current medical terminology and to provide detailed and updated criteria for evaluation of dental and oral conditions for disability rating purposes. The Veteran has not been notified as to the recently changed regulations and the RO has not adjudicated the Veteran's claim under these new regulations. As any changes to DC 9904 and DC 9905 represent only a clarification of the rating language with no substantive changes that impact the Veteran's rating the Board does not find that the Veteran is prejudiced by the Board proceeding with a decision in this case. Furthermore, as will be described below there is no indication that the Veteran's disability rating would be different under either version. Prior to September 10, 2017 DC 9904 provided for a noncompensable (zero percent) rating for slight displacement of the mandible, a rating of 10 percent was assigned for moderate displacement, and a rating of 20 percent for severe displacement. A Note to DC 9904 stated that the rating is dependent upon degree of motion and relative loss of masticatory function. DC 9905 provided a 10 percent rating when the range of lateral excursion was limited from 0 to 4 millimeters (mm) or when the inter-incisal range was limited to 31 to 40 millimeters (mm), a 20 percent rating applied when the inter-incisal range was limited to 21 to 30 mm, a 30 percent rating applied when the inter-incisal range was limited to 11 to 20 mm, and a 40 percent rating applied when the inter-incisal range was limited to 0 to 10 mm. A note to DC 9905, stated ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. As of September 10, 2017 Under DC 9904 a noncompensable rating is warranted for displacement, not causing anterior or posterior open bite. A 10 percent rating is warranted for displacement, causing moderate anterior or posterior open bite. A 20 percent rating is warranted for displacement, causing severe anterior or posterior open bite. Under DC 9905 a 10 percent rating is assigned when the range of lateral excursion is limited to 0 to 4 millimeters (mm) or when the inter-incisal range is limited to 30 to 34 millimeters (mm). A 20 percent rating applies when the inter-incisal range is limited to 21 to 29 mm. A 30 percent rating applies when the inter-incisal range is limited to 11 to 20 mm. A 40 percent rating applies when the inter-incisal range is limited to 0 to 10 mm. Note (1) to DC 9905 states that ratings for inter-incisal movement shall not be combined with ratings for limited lateral excursion. Factual Background and Analysis During the April 2017 hearing the Veteran testified that he is sore on a daily basis, has trouble eating and sleeping, and that he only eats soft food describing that it is painful for him to chew. He stated that he has not yawned in 40 years because if he does his jaw locks up and he has to put it back into place and the pain associated with that is unbearable. He stated that he keeps his mouth clamped when he gets the urge to yawn. In an August 2009 VA examination the Veteran was diagnosed with status post fracture of left mandible with residual intermittent temporomandibular joint (TMJ) disorder and tooth decay (not related to trauma). Pain was noted when the left TMJ would lock open and that in order to close the mouth it needed to be physically closed with hands. The examiner concluded functional impairment due to loss of motion, stating that it would open to about 85 percent of the normal limit. Limitation of inter-incisal range of motion (ROM) was noted as 35mm and lateral excursion as 40 mm. Bone loss of the mandible and the maxilla from tooth loss attrition was noted. The examiner stated that the bone loss is replaceable by prosthesis, but the degree of bone loss was not indicated. There was no bone loss of the hard palate. The impact on the Veteran's occupation and daily activities was described as jaw locks open only with wide yawn, and he can eat normally. In a January 2011 dental consult note the primary diagnosis was loss of teeth due to caries. The examiner noted that the Veteran periodically would subluxate his left TMJ but stated that it could be reduced with help from his wife. The examiner concluded that his TMJ was within normal limits. A July 2011 VA medical record notes the Veteran's reports of pain with chewing. A December 2011 VA medical record indicates that the Veteran would chew gum all day long and denied pain except when eating sandwiches. A January 2013 VA examination showed that upon examination there was no evidence of malunion of the mandible. The imagining showed alveolar bone lost due to loss of teeth, not trauma. The examiner noted that the masticator surfaces could be restored by suitable prosthesis. The examiner concluded that there was no limitation of opening, noting the following measurements: 38mm, LL 10mm, RL 8mm. There are VA medical records that indicate the Veteran did not have any problems with chewing. See VA medical records dated September 2012, December 2012, January 2013, and August 2014. During an October 2015 VA examination the examiner concluded that the Veteran did not now, nor ever have a temporomandibular joint condition. The Veteran denied jaw complaints and functional loss. The following measurements were noted: right lateral excursion at 7 mm, left lateral excursion at 11 mm, and inter-incisal distance at 42 mm. The examiner concluded that there was no evidence of pain with chewing, no objective evidence of localized tenderness or pain on palpation, no evidence of crepitus or clicking of the joints of or soft tissue of the right TMJ or the left TMJ, no limitation of movement, pain or deviation, and no joint noise. The examiner stated that the results were similar to the 2013 VA examination and that the Veteran did not experience difficulties with mastication. A January 2017 VA medical record indicates the Veteran presented for consultation regarding facial pain, describing the pain as constant at level 4-5, reporting the pain is made worse when chewing. A June 2017 VA medical record indicates complaints of jaw pain. An August 2017 VA Disability Benefits Questionnaire shows function within normal limits (WNL) with some tenderness at the outer limits of the Veteran's jaw. The images indicate WNL with wire ligature present lower left mandible near the left angle of the jaw. The examiner concluded that the Veteran had full ROM and at the time of the examination had upper denture and lower partial that functioned well in restoring dental function. The examiner stated that subsequent tooth loss was more likely due to decay or periodontal problems. After careful review of the record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for any time during the appeal period. In reviewing the criteria for a 20 percent disability rating and determining whether an evaluation in excess of 10 percent is warranted, the Board finds that the evidence does not establish that during the appeal period the Veteran's jaw disability manifested in displacement, causing severe anterior or posterior open bite or severe displacement of mandible, or having limited motion with inter-incisal less than 35mm or lateral excursion less than 7mm. Specifically, the evidence demonstrates that the Veteran's functional impairment due to loss of motion has been slight to moderate as the examiners noted that he generally had full range of motion, with the ability to open his mouth about 85 percent of the normal limit. Throughout the appeal period the displacement causing anterior or posterior open bite has been moderate, in accordance with a 10 percent disability rating. Using the language of DC 9904 prior to September 10, 2017 the Veteran's symptomatology would still more approximate a 10 percent disability in that the displacement of mandible was no more than moderate at any time during the appeal period. In addition, in applying DC 9905 both prior to and after the September 10, 2017 modification, the Veteran's symptomatology would still more approximate a 10 percent disability in that at no time during the appeal period was the Veteran's inter-incisal motion range less than 35 millimeters or his lateral excursion less than 7 millimeters. For the majority of the appeal period the Veteran has had his temporomandibular joint (TMJ) diagnosed as within normal limits, and the most recent VA examinations illustrated that the Veteran was considered never to have had a TMJ disorder. The Board has considered whether the Veteran is entitled to a separate rating under DC 9903; however, there is no evidence of record indicating that the Veteran's jaw disability was considered productive of a nonunion of the mandible that is severe with false motion or moderate without false motion. The Board also observes that a separate rating is not warranted under DC 9913 as the medical evidence of record has consistently illustrated that the loss of teeth is attributed to decay or periodontal problems, and not trauma or disease such as osteomyelitis. In any event, the evidence demonstrates that the masticator surfaces and any bone loss of the mandible and the maxilla can be restored by suitable prosthesis. As such, a compensable rating would not be warranted under DC 9913. Additionally, as there is no evidence of any osteomyelitis or osteoradionecrosis of the mandible, complete loss of the mandible, or loss of half or more of the mandible, an evaluation under DC 9900, DC 9901, and DC 9902 is not warranted. The Board has considered whether factors such as functional impairment and pain addressed under 38 C.F.R. §§ 4. 10, 4.40, and 4.45 would warrant a higher rating for the Veteran's jaw disability during the rating period under consideration. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The October 2015 VA examination report and the August 2017 VA examination report do not show that pain caused additional restriction warranting a compensable rating. Moreover, the Veteran was competent to describe his observable symptoms, including pain, limitations in what he could eat, and difficulty in yawing. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to the extent that his reported symptoms were inconsistent with the objective medical evidence of record, such statements are afforded less probative value, as the Veteran did not possess the medical or orthopedic expertise to assess the severity of his jaw disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the RO assigned a rating of 10 percent was based on evidence of painful and limited motion. The Board finds that the rating assigned throughout the appeal period compensates the Veteran for any functional impairment he may experience in his jaw. As such, the Board affords the most probative weight to the objective findings contained with the VA examination reports of record. Not only does the current disability rating account for the symptoms the Veteran has experienced throughout the appeal period, but the most recent examinations of record indicate that there was no difficulty chewing or pain with chewing and his inter-incisal range and lateral excursion range appear to have improved during the appeal period. The Board has considered whether staged ratings are appropriate for the Veteran's jaw disability during anytime during the appeal period; however, the Board finds that his symptomatology has most nearly approximated symptoms such as those exemplified by the 10 percent disability criteria throughout the appeal period. Thus, staged ratings during any time during the appeal period are not warranted. Extraschedular By way of an August 2016 Statement of Accredited Representation in Appealed Case, the Veteran's then representative argued that the Veteran's disability warrants a rating higher than 10 percent. In the statement extraschedular consideration is mentioned. Therefore, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2017). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected jaw disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's jaw disability with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology with respect to the symptoms and functional impairment he experiences. Specifically, the Veteran primarily reports pain when chewing and a jaw that locks if he yawns. The current 10 percent rating under 4.150 account for such symptomatology. There is no evidence to indicate that at any time during the appeal period that the displacement of the malunion of mandible caused severe anterior or posterior open bite or severe displacement. Nor is there evidence to indicate that at any time during the appeal period the Veteran's inter-incisal range of motion was less than 35mm or that his lateral excursion was less than 7mm. Thus, the Veteran's current schedular ratings are adequate to fully compensate him for his disability on appeal. Under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Notably, the Veteran is also service connected for posttraumatic stress disorder and left mandible residual surgical scar. Neither the Veteran nor his representative has indicated any specific service-connected disabilities which are not captured by the schedular evaluations of the Veteran's individual service-connected conditions. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of the Veteran's jaw disability claim for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A rating in excess of 10 percent for residuals of a left mandible fracture with interference to mastication, and limitation of motion is denied. ____________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs