Citation Nr: 21002734 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-17 925 DATE: January 14, 2021 ORDER Entitlement to an initial 10 percent rating, and no higher, for residuals of right mandibular fracture with extraction of #32 tooth prior to November 16, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 30 percent from November 16, 2016 for residuals of right mandibular fracture is denied. FINDINGS OF FACT 1. Prior to November 16, 2016, the Veteran’s jaw disability caused functional loss due to pain. 2. From November 16, 2016, the Veteran’s jaw disability results in inter-incisal range of 11 to 20 millimeters (mm); from September 10, 2017, the disability is manifested in inter-incisal range of 11 to 20 mm during flares, but dietary restrictions to all mechanically altered foods is not shown. CONCLUSIONS OF LAW 1. Prior to November 16, 2016, the criteria for a 10 percent rating, but no higher, for residuals of right mandibular fracture with extraction of #32 tooth, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.59, 4.150, Diagnostic Codes (DC) 9902, 9905. 2. From November 16, 2016, the criteria for a rating in excess of 30 percent for residuals of right mandibular fracture are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.59, 4.150, DC 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1975 to July 1976. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision dated in February 2013. The Veteran testified before the undersigned in November 2016; a copy of the transcript is of record and has been reviewed. The Board remanded this case to the AOJ for additional development in September 2017. The Board finds that the AOJ substantially complied with remand directives as the Veteran was afforded an adequate VA examination on remand. Stegall v. West, 11 Vet. App. (1998). Therefore, the claim is ready for adjudication, and another remand is unnecessary. 1. Entitlement to an initial compensable evaluation for residuals of right mandibular fracture with extraction of #32 tooth, and in excess of 30 percent from November 16, 2016 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran contends that his disability warrants an initial compensable (higher than 0 percent) rating, and a rating in excess of 30 percent from November 16, 2016. As explained in greater detail below, the Board finds that a 10 percent rating is warranted prior to November 16, 2016. However, the claim for a rating in excess of 30 percent from November 16, 2016 must be denied. The residuals of the Veteran’s mandibular fracture were originally rated under Diagnostic Code (DC) 9999-9902. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be “built up” by using the first two digits of that part of the rating schedule which most closely identifies the part or system of the body involved, and adding “99” for the unlisted condition. The additional code used to identify the specific basis for the evaluation is shown after a hyphen. 38 C.F.R. § 4.27. DC 9902 applies to partial loss of the mandible. This code provides a 10 percent rating for loss of less than one-half of the mandible, not involving temporomandibular articulation, that is replaceable by prosthesis. A 20 percent rating is warranted if it is not replaceable by prosthesis. 38 C.F.R. § 4.150, DC 9902. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. From November 16, 2016, the applicable diagnostic code changed to DC 9905, which applies to temporomandibular disorder (TMD). The rating under DC 9905 is based on limited motion of temporomandibular articulation. 38 C.F.R. § 4.150 (2017). The applicable rating criteria for dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective September 10, 2017, and the “new” schedular criteria are applicable as of that date. See 82 Fed. Reg. 36080 (August 3, 2017). As such, the Board will consider the “old” schedular criteria for the entirety of the rating period, but the revised criteria only from the effective date of the change in regulation. Under the “old” schedular criteria, DC 9905, limitation of motion of the temporomandibular joint (TMJ) warrants a 10 percent rating if there is limitation of inter-incisal range of motion of 31 to 40 mm; or limitation range of lateral excursion of 0 to 4 mm. A 20 percent rating is warranted when inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is warranted when inter-incisal range is limited to 11 to 20 mm; and a maximum 40 percent rating is warranted when inter-incisal range is limited to 0 to 10 mm. A note to DC 9905 provides that ratings for limited inter-incisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. Under the “new” schedular criteria, DC 9905, inter-incisal range of 0 to 10 mm of maximum unassisted vertical opening; with dietary restrictions to all mechanically altered foods warrants a 50 percent rating; without dietary restrictions to mechanically altered foods warrants 40 percent. Inter-incisal range of 11 to 20 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants 40 percent; without dietary restrictions to mechanically altered foods warrants 30 percent. Inter-incisal range of 21 to 29 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 40 percent; with dietary restrictions to soft and semi-solid foods warrants 30 percent; without dietary restrictions to mechanically altered foods warrants 20 percent. Inter-incisal range of 30 to 34 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 30 percent; with dietary restrictions to soft and semi-solid foods warrants 20 percent; without dietary restrictions to mechanically altered foods warrants 10 percent. Lateral excursion range of motion of 0 to 4 mm warrants 10 percent. Note (1) of the “new” criteria provides that ratings for inter-incisal movement shall not be combined with ratings for limited lateral excursion. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. 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. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. DCs 9900-9916 provide various schedular ratings based on whole or partial loss of the mandible or maxilla, or nonunion or malunion of the same. The Board notes that, other than the codes discussed above, no other diagnostic code for dental and oral conditions is applicable during any other period of the Veteran’s appeal. The Veteran’s residuals of fractured mandible do not include osteomyelitis, complete loss of the mandible, nonunion or malunion of the mandible, loss of condyloid process or hard palate, loss of all upper or lower teeth due to loss of substance of body of maxilla or mandible, loss of maxilla, or malunion or nonunion of maxilla. As these DCs are not applicable, a higher rating is not available under their respective criteria. Pertinent to this case, in rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); see also Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that the July 2020 VA examination is adequate for rating. In this case, in July 2020, the examiner documented active range of motion for the Veteran’s TMJ. The Board notes that the jaw is not weight-bearing and there is no opposing joint; nevertheless, the Veteran’s left side was also examined. The Veteran did report pain with prolonged use. In addition, the examiner documented that there was no pain with passive range of motion of the TMJ, indicating passive range of motion testing was done. Although passive ranges of motion were not specifically documented in millimeters of vertical opening, it is reasonable to assume that assisted motion would be less limiting than active motion, and therefore, the failure to report passive motion is harmless error. Further, at the July 2020 VA examination, the Veteran reported flare-ups, and the examiner estimated loss of range of motion during flares. The questions before the Board are whether: 1) prior to November 16, 2016, the evidence showed TMD with limitation of inter-incisal range of motion of 31 to 40 mm or limitation range of lateral excursion of 0 to 4 mm (under the “old” criteria); or loss of less than one-half of the mandible, not involving temporomandibular articulation, that is replaceable by prosthesis; and 2) from November 16, 2016 to September 10, 2017 (the “old” criteria), the evidence shows inter-incisal range of 0 to 10 mm, or under the “new” criteria from September 10, 2017, the evidence shows TMD with inter-incisal range of 21 to 29 mm with dietary restrictions to full liquid and pureed foods; or inter-incisal range of 11 to 20 mm with dietary restrictions to all mechanically altered foods; or inter-incisal range of 0 to 10 mm with dietary restrictions to mechanically altered foods. The Board must also consider whether the “old” is more favorable than the “new” criteria for the period from September 10, 2017 as the Veteran’s claim was pending when the rating criteria were revised. Turning to the evidence, the Veteran underwent a VA examination in January 2013. The examiner noted that the Veteran had loss of tooth 32 due to trauma, but no teeth were lost due to loss of substance of the body of the maxilla or mandible. He did not have loss of portion of the mandible or maxilla, or malunion or nonunion of the mandible or maxilla. The Veteran was also not diagnosed with a temporomandibular joint disorder (TMJD), but he did have closed reduction of the right mandibular due to fracture. The examiner noted that at the time of military discharge, the Veteran had full range of motion of the mandible and was managing a regular diet, and there was no residual defect or disability indicated at the time of physical examination. The Veteran testified at a Board hearing in November 2016. He reported that, since his VA examination, his symptoms had gotten worse and he now had popping and pain while chewing. He did not report that these symptoms were present at the VA examination, but that they had gotten worse. The Veteran was afforded another VA examination in July 2020. He was diagnosed with TMJD. The Veteran reported that his jaw pain and popping had worsened over the years. He had flare-ups, especially when chewing tough meat or sleeping on his side. The Veteran altered his diet by eating softer foods and avoiding chewy and crunchy foods. He had not been able to receive treatment for his jaw symptoms. On examination, the Veteran’s jaw deviated to the left on opening, and all movements caused pain. On testing, the Veteran had inter-incisal distance of 21-29 mm and left lateral excursion 0-4 mm, but at worst, with flares, the Veteran’s inter-incisal distance was 11-20 mm and lateral excursion was 0-4 mm bilaterally. The Veteran was unable to complete repetitive-use testing due to pain. Pain, incoordination, and weakness contributed to functional loss. The examiner indicated dietary restrictions to soft and semi-solid foods. First, the Board concludes that, prior to November 16, 2016, the schedular criteria for a 10 percent rating under DCs 9905 and 9902 were not met. There is no evidence prior to that date that the Veteran had TMJD, and there is no documentation that inter-incisal range was 31 to 40 mm or lateral excursion was 0 to 4 mm. The January 2013 VA examination indicated no TMJD and no disability. The Veteran also had no loss of mandible. Nevertheless, the Board notes that the Veteran reported pain with chewing, and that the pain caused him to favor one side of his mouth. This indicates functional loss. Therefore, the minimal compensable rating under DC 9902 and/or DC 9905 is warranted pursuant to 38 C.F.R. § 4.59 (“…actually painful…joints due to healed injury [are] entitled to at least the minimum compensable rating for the joint.”). An initial 10 percent rating, but no higher, shall be assigned. The claim for a rating in excess of 10 percent is denied as the criteria for a higher rating are not met nor more nearly approximated, and the 10 percent rating accounts for the Veteran’s symptoms. Second, the Board concludes that, under the “old” criteria from November 16, 2016 to September 10, 2017, a rating in excess of 30 percent is not warranted. The Veteran’s testimony in November 2016 is insufficient to find that the Veteran’s range of motion was so limited as to more nearly approximate inter-incisal range of 0 to 10 mm. Moreover, at no point during the appeal period is range of motion of 0 to 10 mm documented, even during a flare-up. Under the “new” criteria from September 10, 2017, the Board concludes that a 40 percent rating is also not warranted. The most limited range of motion documented by the adequate July 2020 VA examination is 11 to 20 mm of maximum unassisted vertical opening, but there is no record of a physician having recorded or verified dietary restrictions to all mechanically altered foods. Therefore, the criteria for a rating in excess of 30 percent have not been met. Further, as noted, the Board finds that a higher 40 percent rating under the “old” criteria of DC 9905 is also not warranted for this period as the evidence does not show inter-incisal range is limited to 0 to 10 mm. In conclusion, the Veteran’s claim for an initial compensable rating is granted; a 10 percent rating, but no higher, is warranted prior to November 16, 2016. Additionally, the claim for a rating in excess of 30 percent for residuals of right mandibular fracture thereafter is denied. To the extent the claim is denied, the Board finds that the preponderance of the evidence is against the claim, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.