Citation Nr: 21000663 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-40 336 DATE: January 5, 2021 ORDER Entitlement to secondary service connection for rosacea is granted. Entitlement to a 50 percent rating for status post fracture of the zygomatic arch with headaches is granted from September 28, 2010. Entitlement to a 30 percent rating, but no higher, for temporomandibular joint syndrome (TMJ) is granted from September 28, 2010 to October 21, 2019. Entitlement to a rating in excess of 30 percent for TMJ from October 21, 2019 is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for zygomatic arch scar is remanded. Entitlement to an initial compensable rating for TMJ scar is remanded. Entitlement to service connection for residuals of status post fracture of the zygomatic arch other than headaches, rosacea, and scar is remanded. FINDINGS OF FACT 1. The Veteran’s rosacea is proximately due to his service-connected status post fracture of the zygomatic arch. 2. The Veteran’s status post fracture of the zygomatic arch with headaches have more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the appeal period. 3. From September 28, 2010 to October 21, 2019, when considering pain, flare-ups, and corresponding functional impairment, the Veteran’s TMJ has been manifested by interincisal range of 11 to 20 millimeters (mm) of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. 4. The Veteran’s TMJ has not been manifested by interincisal range of 10 mm or less of maximum unassisted vertical opening and has not required a mechanically altered foods diet at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to secondary service connection for rosacea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for a 50 percent rating for status post fracture of the zygomatic arch with headaches are met from September 28, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. 3. The criteria for a 30 percent rating, but no higher, for TMJ are met from September 28, 2010 to October 21, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.150, DC 9905. 4. The criteria for a rating in excess of 30 percent for TMJ from October 21, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.150, DC 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1992 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and June 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in June 2018. In September 2018, the Board remanded the claims for further development. Notably, during the pendency of this appeal, a May 2020 rating decision awarded service connection for erectile dysfunction. This issue is accordingly not in appellate status. 1. Entitlement to service connection for rosacea is granted. As secondary service connection under 38 C.F.R. § 3.310(a) is warranted, the Board need not address the Veteran’s contentions on direct service connection. Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran is currently diagnosed with rosacea. See June 2016 and November 2019 VA examination reports. He is also service-connected for status post fracture of the zygomatic arch with headaches. Therefore, the first two elements of secondary service connection are satisfied. Regarding the last element, nexus, the Veteran competently and credibly testified that his doctor told him that his rosacea was most likely the caused by his broken zygomatic arch. See Board Hearing Transcript (Tr.) at 11-12, 19. He reported that he had rosacea only on his right cheek, where his zygomatic arch was fractured, and explained that the healing process of the bone could cause rosacea in that area because of its close proximity to the surface of the skin, per his doctor. Id. The Veteran is competent to report symptoms he observes, such as the presence of rosacea around the area of his status post zygomatic arch fracture, as well as what his doctors have reported to him, and the Board has no reason to doubt his credibility. Therefore, affording him the benefit of the doubt, the Board finds the Veteran’s reports of a nexus furnished by his doctor are competent and credible. Additionally, the November 2019 VA examiner provided a conditional opinion, stating that if the Veteran’s dermatologist believed that his zygomatic arch fracture was the inciting event that caused his asymmetric rosacea, then such trauma to the zygomatic arch was the likely cause. In support of this opinion, the examiner cited to cases where trauma produced vascular prominence and altered glandular skin function, resulting in the production of altered skin similar to rosacea, usually within the first few months status post injury. The Board notes that the June 2016 VA examiner rendered a negative nexus opinion based on the finding of rosacea on both sides of the Veteran’s face, as opposed to the November 2019 VA examiner’s finding of asymmetric rosacea on the right cheek, without any other adequate rationale. Thus, this opinion is afforded no probative value. Given the Veteran’s competent and credible testimony, coupled with the November 2019 VA examiner’s opinion, secondary service connection for rosacea is warranted. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. By way of background, a May 1995 rating decision awarded service connection for TMJ and status post fracture of the zygomatic arch with headaches and assigned a 10 percent rating for each condition, effective May 30, 1993. A December 1999 rating decision increased the rating for TMJ to 20 percent, effective November 17, 1999. A May 2020 rating decision increased the TMJ rating to 30 percent, effective October 21, 2019, and increased the rating for status post fracture of the zygomatic arch with headaches to 30 percent, effective November 4, 2019. The current appeal period before the Board begins on September 28, 2010, the date VA received the Veteran’s increased rating claims, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 2. Entitlement to a 50 percent rating for status post fracture of the zygomatic arch with headaches is granted from September 28, 2010. The Veteran’s status post fracture of the zygomatic arch with headaches are currently rated pursuant to DC 8100. Under DC 8100, a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. VA regulations do not define “prostrating.” By way of reference, the Board notes that according to Webster’s New World Dictionary of American English, Third College Edition (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Upon review of the totality of the record, the Board finds that a higher rating of 50 percent is warranted for the Veteran’s status post fracture of the zygomatic arch with headaches, effective September 28, 2010, the date of his increased rating claim. In this regard, there is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of a 50 percent rating within the one-year look-back period. On VA examination in May 2011, the Veteran reported moderate to severe headaches approximately 4 times a week, lasting hours and sometimes all day. He described associated symptoms of head pain, seeing flashes, hypersensitivity to sound and light, and the inability to sleep at times. The examiner indicated that the Veteran’s headache condition did not require continuous medication for treatment, noting over the counter medication was taken as needed, and that less than half of the headaches were prostrating and did not have an effect on the Veteran’s ability to work or his usual daily activities. VA treatment records show the Veteran’s reports of severe and overwhelming migraine headaches. He described debilitating headaches that affected his sleep and stated that he was afraid to drive due to pain and light sensitivity. See July 2013 VA treatment record. He also endorsed taking 1000 mg Ibuprofen daily without relief. Id. The Veteran described gradually worsening headaches over the past 5 years, occurring approximately 4-5 times a week, that were triggered and aggravated by bright lights and TMJ. See June and July 2018 VA treatment records. He indicated that his headaches were resolved by taking a warm shower, sleeping in a dark room, and/or with medication, including sumatriptan. Id. The Veteran stated that he lost his job January 2018 due to his headache condition, as it impacted his attendance and performance. Id. Since then, he indicates obtaining a new job but reports that he has to take days off due to his headaches. See October 2019 VA examination report. At the November 2019 VA examination, the Veteran endorsed pulsating, throbbing headache pain on both sides of the head with associated nausea, vomiting, and sensitivity to light and sound, typically occurring 4-5 times a week and lasting approximately 3 hours. His treatment plan included taking Sumatriptan and Topamax. The examiner noted that the Veteran had characteristic prostrating attacks of headache pain averaging once a month over the last several months. The examiner found that the Veteran’s headache condition impacted his ability to work, as the Veteran was required to stop work and lie down during a headache. The Veteran is competent to report on the onset and recurrence of symptoms such as headache pain and photosensitivity. He is thus competent to characterize the nature of his headaches, which he has described as lasting hours to the entire day, occurring multiple times a week, and precluding him from any activities during that time, including work. Given the Veteran’s competent and credible reports (see Board Hearing Tr. at 4-9 and July 2020 correspondence) and without considering the ameliorative effects of medication, a maximum rating of 50 percent is warranted from September 28, 2010. While the VA examiners’ determined that the Veteran did not have very frequent prostrating and prolonged headache attacks, this is in conflict with other, more severe symptoms around the same time (missing work due to headaches), and again does not consider ameliorative effects of his prescription headache medication, and the Board affords the Veteran the benefit of the doubt in this regard. 3. Entitlement to a 30 percent rating, but no higher, for TMJ is granted from September 28, 2010 to October 21, 2019. 4. Entitlement to a rating in excess of 30 percent for TMJ from October 21, 2019 is denied. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran’s TMJ is rated under the provisions of 38 C.F.R. § 4.150, DC 9905. During the pendency of this appeal, the applicable rating criteria for dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective September 10, 2017, and the updated schedular criteria are applicable as of that date. See 82 Fed. Reg. 36080 (August 3, 2017). The revision does not specify that it was to have a retroactive effect. Accordingly, the Board will consider the pre-September 10, 2017 criteria and the revised criteria and apply the criteria most favorable to the Veteran. However, if an award is warranted under the revised criteria, the award cannot be retroactively effective prior to September 10, 2017. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to September 10, 2017, under DC 9905, for limited motion of temporomandibular articulation, provided a 20 percent rating for interincisal range of 21 to 30 mm, a 30 percent rating for interincisal range of 11 to 20 mm, and a maximum 40 percent rating for interincisal range of 0 to 10 mm. 38 C.F.R. § 4.150, DC 9905 (2016). A Note provides that ratings for limited interincisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. Since September 10, 2017, under DC 9905, for temporomandibular disorder, when the interincisal range is 30 to 34 mm of maximum unassisted vertical opening, a 20 percent rating is assigned with dietary restrictions to soft and semi-solid foods; and, a 30 percent rating is assigned with dietary restrictions to full liquid and pureed foods. When the interincisal range is 21 to 29 mm of maximum unassisted vertical opening, a 20 percent rating is assigned without dietary restrictions to mechanically altered foods; a 30 percent rating is assigned with dietary restrictions to soft and semi-solid foods; and, a 40 percent rating is assigned with dietary restrictions to full liquid and pureed foods. When the interincisal range is 11 to 20 mm of maximum unassisted vertical opening, a 30 percent rating is assigned without dietary restrictions to mechanically altered foods; and a 40 percent rating is assigned with dietary restrictions to all mechanically altered foods. When the interincisal range is 0 to 10 mm of maximum unassisted vertical opening, a 40 percent rating is assigned without dietary restrictions to mechanically altered foods; and a 50 percent rating is assigned with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, DC 9905. Per DC 9905, Note (1) states ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Note (2) states, for VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. Note (3) states, for VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow; there are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods; and to warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. 38 C.F.R. § 4.150, DC 9905. On VA examination in April 2011, the Veteran reported discomfort on mastication and symptoms of crepitus. Range of motion testing showed lateral excursion to 15 mm and interincisal range to 45 mm. The examiner noted that the right masseter was tender on palpitation. The July 2012 VA examination report shows the Veteran’s lateral excursion was greater than 4 mm without additional loss of motion upon repetition. His interincisal range was 21 to 30 mm, with objective evidence of painful motion beginning at 31 to 40 mm. After repetitive use testing, interincisal range was 31 to 40 mm. The Veteran reported flare-ups in the morning and with yawning, as well as symptoms of pan, tenderness, and inability to chew properly. In June 2018, the Veteran testified that his interincisal range, at its worst, was 15 to 17 mm, and not to 30 mm, per the July 2012 VA examination report. See Board Hearing Tr. at 3. He reported that the July 2012 examiner did not accurately measure his interincisal range and once he learned that the examination report showed a range between 25 to 30 mm, he measured his own interincisal range, which was between 15 to 17 mm. Id at 11. He also reported that he mostly ate soft foods because his TMJ made it difficult for him to chew and had to cut up food because he was unable to fully open his jaw. Id at 10. At the October 2019 VA examination, the Veteran reported flare-ups that restricted him from eating hard food. His lateral excursion was 0 to 4 mm and interincisal range was 11 to 20 mm, with evidence of pain noted on examination. While additional loss of motion after repetitive use testing was noted, the Veteran’s interincisal range remained between 11 to 20 mm. The examiner indicated that the Veteran was examined immediately after repetitive use over time and during a flare-up, and noted that pain, weakness, fatigability, and incoordination did not significantly limit functional ability. The examiner also noted that the Veteran did not require a mechanically altered foods diet. Here, the Board finds that higher 30 percent rating is warranted for TMJ throughout the appeal period, effective September 28, 2010, based on the Veteran’s competent and credible reports of painful motion, flare-ups, and interincisal range no worse than 15 to 17 mm. In this regard, there is no pertinent evidence demonstrating an ascertainable increase in disability to allow for assignment of the 30 percent rating within the one-year look-back period. Under both the old and revised rating criteria, DC 9905 provides a 30 percent rating for interincisal range between 11 to 20 mm and, as such, a 30 percent rating, but no higher, is assigned. A rating in excess of 30 percent is not warranted at point during the appeal period, as the Veteran’s interincisal range has never been limited to 10 mm or less, per his own reports and even when considering DeLuca factors or as a result of repetitive motion and flare-ups, as required for a higher rating under the old and new revised rating criteria. Furthermore, while the Board acknowledges that the Veteran reported the inability to eat certain foods and use of a food processor, the evidence does not show that a physician has recorded or verified that the Veteran requires a mechanically altered food diet to warrant a higher rating under the revised rating criteria. Accordingly, a rating in excess of 30 percent is precluded. No other DCs may be considered. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). REASONS FOR REMAND 5. Entitlement to an initial rating in excess of 10 percent for zygomatic arch scar is remanded. 6. Entitlement to an initial compensable rating for TMJ scar is remanded. The Veteran has been assigned separate ratings for a zygomatic arch scar, rated at 10 percent pursuant to DCs 7800-7804, and a noncompensable rating for a TMJ scar, pursuant to DC 7804, both effective May 30, 1993. See May 2020 rating decision. The Board notes that during the pendency of the appeal, the applicable rating criteria for scars were amended on three occasions, effective August 30, 2002, effective October 23, 2008, and most recently effective August 13, 2018. In awarding service connection, however, the RO erroneously only considered only the most recent scar rating criteria, and it would be prejudicial for the Board to examine the Veteran’s claim under the older criteria in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). Remand is therefore necessary for issuance of a SSOC. 7. Entitlement to service connection for residuals of status post fracture of the zygomatic arch other than headaches, rosacea, and scar is remanded. Remand is required, as there has not been substantial compliance with the directives of the September 2018 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). In this regard, the November 2019 VA examiner did not provide an opinion as to the additional symptoms other than seizures potentially attributable to the Veteran’s status post fracture of the zygomatic arch, as specifically described and requested by the Board in the prior remand. Therefore, a remand is necessary under Stegall. Any outstanding records should also be secured. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then refer the claims file to a VA examiner, preferably a physician, for preparation of an addendum opinion as to the etiology of any residuals of the Veteran’s status post fracture of the zygomatic arch other than headaches, rosacea, and scar. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that: (1) syncope (see June 2015 private treatment record), (2) seizures (see, e.g., April 2018 private treatment record), and (3) reported memory loss, dizziness, and loss of balance (see Board Hearing Transcript): (a) are proximately due to his service-connected status post fracture of the zygomatic arch; or (b) have been aggravated (worsened beyond natural progression) by his service-connected status post fracture of the zygomatic arch. In answering these questions please address each symptom separately, and if one such symptom is not attributable to or aggravated by the zygomatic arch fracture, please provide supportive rationale. Also, note there is no temporal requirement that the primary condition (zygomatic arch fracture) be service-connected, or even diagnosed, at the time the secondary condition (other symptoms) is incurred, and reliance on this fact will render any opinion inadequate. 4. Upon readjudication of the Veteran’s entitlement to an increased rating for his scar disabilities, please provide to the Veteran and consider all revisions to the scar rating criteria on August 30, 2002; October 23, 2008, and August 13, 2018. Specifically, the Veteran should be notified as to all versions of DCs 7800 and 7804 between 1993 and the present, including the above-noted regulation changes, and his claim adjudicated under these versions within the bounds of the law (e.g. not applying a revised DC before its effective date, applying older DCs throughout the entire appeal period if more favorable, etc.) See, e.g., VAOGCPREC 7-2003 (Where a law or regulation changes after the claims have been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so); see also Kuzma, supra. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.