Citation Nr: 20006837 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 18-06 408 DATE: January 28, 2020 ORDER Entitlement to an initial rating in excess of 20 percent for service-connected temporomandibular joint disorder (TMJ) prior to October 15, 2019, is denied. Entitlement to an initial rating in excess of 40 percent for service-connected TMJ from October 15, 2019, is denied. FINDINGS OF FACT 1. Prior to October 15, 2019, the Veteran’s TMJ exhibited limited motion of inter-incisal range of 21 to 30 millimeters. 2. From October 15, 2019, the Veteran’s service-connected TMJ is rated at 40 percent, the maximum rating authorized under Diagnostic Code (DC) 9055 (2018). CONCLUSIONS OF LAW 1. Prior to October 15, 2019, the criteria for an initial rating in excess of 20 percent for service-connected TMJ have not been met. 38 U.S.C. § 1155 (West 2012); DC 9055 (2018). 2. From October 15, 2019, there is no legal basis for the assigment of a schedular rating in excess of 40 percent, the maximum rating authorized under DC 9055. 38 U.S.C. § 1155 (West 2012); DC 9055 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to March 2003. In July 2019, the Veteran and her spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2019, this appeal was remanded for further development. Initial Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). TMJ In an August 2017 rating decision, service connection for a TMJ (previously claimed as a dental injury) was granted at 20 percent under DC 9905. In November 2017, the Veteran filed a timely notice of disagreement (NOD) appealing the initial rating. Given such, the Veteran is appealing the original assignment of disability evaluation following the award of service connection for TMJ. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In a November 2019 rating decision, the Veteran’s rating for TMJ was increased from 20 percent to 40 percent, effective October 15, 2019. Under DC 9905, a 10 percent rating is awarded for lateral excursion from 0 to 4 millimeters. A 20 percent rating is awarded for inter-incisal range of 21 to 30 millimeters. A 30 percent rating is awarded for inter-incisal range of 11 to 20 millimeters, and a 40 percent rating is awarded for inter-incisal range of 0 to 10 millimeters. A note following the rating criteria indicates that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, DC 9905 (2018). Prior to October 15, 2019 The Veteran is in receipt of an initial rating of 20 percent prior to October 15, 2019. The Veteran initially applied for service connection for TMJ in January 2015 due to jaw pain from an in-service TMJ. In a July 2017 VA examination report for TMJ, the VA examiner noted that right lateral excursion range of motion was to 3 millimeters. The VA examiner noted that range of motion does contribute to functional loss, in that the Veteran is unable to open her mouth normally due to risk of dislocation. The VA examiner noted that additional loss of function or range of motion was right lateral excursion to 2.5 millimeters. The VA examiner noted that left lateral excursion range of motion was to 5 millimeters. The VA examiner noted there was no additional range of motion loss with respect to the left lateral extrusion. The VA examiner noted that inter-incisal distance was 30 millimeters. The VA examiner noted that additional range of motion loss with repetition was 29 millimeters. Here, the Board notes, even considering any functional loss, the Veteran’s lateral excursion, which at most is 2.5 millimeters, would only warrant a 10 percent rating. Furthermore, even considering any additional functional loss, the Board notes that the Veteran’s inter-incisal range, which at most was to 29 millimeters, would warrant a 20 percent rating. Again, a 20 percent rating is assigned to inter-incisal range from 21 to 30 millimeters. Given such, a rating in excess of 20 percent for the period prior to October 15, 2019, is not warranted. In light of Diagnostic Code 9905, in conjunction with 38 C.F.R. §§ 4.40, 4.45, 4.59; and the holdings in DeLuca, the Board considers range of motion testing and medical and lay reports of the Veteran’s symptoms of pain and difficulty chewing, and how these translate to functional loss. Nevertheless, the Board does not find that the Veteran’s reported symptoms or the objective evidence of record warrant a rating in excess of 20 percent at any point during the appeal period, where the evidence reflects that with pain and any additional functional loss her disability is still limited to inter-incisal range to 29 millimeters. The Board also acknowledges the lay statements from the Veteran regarding the severity of her symptoms. These statements are competent evidence of the Veteran’s symptoms as these symptoms are capable of lay observation. However, laypersons do not have the competence to render an opinion as to the level of severity of this type of disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Instead, it is the medical professionals who examined and treated the Veteran, and rendered pertinent opinions in conjunction with the evaluations. Given such, as the medical professionals have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords their opinions great probative value. From October 15, 2019 The Veteran is in receipt of a 40-percent rating for her service-connected TMJ from October 15, 2019. As discussed above, a 40 percent rating is the maximum rating under DC 9905. Given such, there is no legal basis upon which to award a higher rating under DC 9905. Additionally, in light of DC 9905, in conjunction with 38 C.F.R. §§ 4.40, 4.45, 4.59; and the holding in DeLuca, the Board considers range of motion testing and medical and lay reports of the Veteran’s symptoms of pain and difficulty chewing, and how these translate to functional loss. Nevertheless, in the October 2019 VA examination report for temporomandibular disorders (TMDs), although the VA examiner noted pain on examination, the VA examiner noted there was no additional functional loss. Given such, from October 15, 2019, a higher rating than 40 percent is not warranted. Other Diagnostic Codes The Board has considered whether a higher rating throughout the entire period on appeal is warranted under other potentially applicable Diagnostic Codes. Medical evidence of record does not include evidence of loss of condyloid process, one or both sides (DC 9908); arthritis (DC 5003); chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible (DC 9900), loss of the mandible (DCs 9901 and 9902), nonunion and malunion of the mandible (DCs 9903 and 9904), loss of the ramus (DCs 9906 and 9907), loss of coronoid process (DC 9909), loss of the hard palate (DCs 9911 and 9912), loss of the maxilla (DCs 9914 and 9915), or malunion or nonunion of the maxilla (DC 9916). Given such, no other diagnostic code is applicable. (continued on next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.