Citation Nr: 21002744 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 11-01 177 DATE: January 14, 2021 ORDER Entitlement to service connection for right side temporomandibular joint syndrome (TMJ), including as secondary to service-connected major depressive disorder is granted. Entitlement to a compensable rating for dermatosis (also claimed as dermatitis, keratosis pilaris, pruritis, seborrhea and lichen planus) (skin disability) from October 22, 2015 is denied. FINDINGS OF FACT 1. The Veteran’s current jaw disability is related to service. 2. The Veteran’s skin disability has been in remission since October 22, 2015; his skin disability covers less than 5 percent of the total body area and there are no exposed areas; he does not take intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, retinoids, biologics, photochemotherapy, or PUVA [psoralen plus ultraviolet light of A-wavelength] treatments, and there is no functional loss for skin lesions attributable to the service-connected skin disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right-side TMJ have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a compensable rating for dermatosis (also claimed as dermatitis, keratosis pilaris, pruritis, seborrhea and lichen planus) (skin disability) from October 22, 2015 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.118, Diagnostic Code (Code) 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1998 until May 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2009 and September 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In August 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A copy of the hearing transcript is associated with the Veteran’s record and has been reviewed. In November 2014, the Board remanded the matters for additional development. In an interim August 2017 rating decision, the RO increased the rating for dermatosis to 10 percent effective May 16, 2009 and reduced it to 0% effective October 22, 2015. In December 2017 the Board remanded the matters for additional development. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, the evidence generally must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection for a disability there must be evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Entitlement to service connection for right side TMJ, including as secondary to service-connected major depressive disorder The Veteran has a current diagnosis of right-side disc displacement without reduction. He contends service connection is warranted because his jaw initially started “locking” during and has continued since. Alternatively, the Veteran maintains that he developed a jaw disability proximately due to his service-connected major depressive disorder. An October 2008 in-service dental treatment record reveals the Veteran’s complaint of jaw pain and his jaw locking open. He was referred to the TMD [temporomandibular disorder] clinic in Bethesda for an evaluation. The written evaluation by the Bethesda Orofacial Pain Center, National Naval Medical Center, is undated, but it appears the Veteran received the consultation for his right jaw complaints while he was still on active duty. The branch captain at the Bethesda Orofacial Pain Center noted that the Veteran was evaluated for right TMJ pain and locking. His diagnosis was disk displacement with reduction with intermittent disk displacement without reduction or disk adhesion. It was noted that this had been a continuous problem which had not had significant response to conservative therapy. In his May 2009 separation medical assessment report, the Veteran noted he had been treated for right-side jaw pain/locking by “Orofacial Specialist[.]” He also noted that his right-side jaw locks when biting down or just closing his mouth after opening to speak or yawn, causing pain and difficulty eating. In March 2010. the Veteran underwent a VA dental and oral examination. He reported that his jaw began locking in 2004. He stated that he would yawn widely, and his jaw would lock open. He was able to close his jaw by pushing it sideways with his fingers. On physical evaluation, his maximum opening was 22 millimeters, which is less than normal; normal maximum opening is considered to be approximately 40 to 52 millimeters. The examiner/dentist upon palpation and auscultation of the Veteran’s TMJ, noted the Veteran had a slight click on the right side. No diagnosis was rendered. The examiner/dentist opined that it is less likely than not that the Veteran’s TMJ symptoms are attributable to his military service. It is more likely than not attributable to his congenital angle Class III occlusal scheme. During the October 2015 VA examination, the Veteran reported the claimed TMJ he experiences sound and feel “crackly” and he has trouble opening his mouth wide, especially in the morning. He stated that he feels like his jaw shifts around a lot and points to the right angle of the mandible where the pain is not the joint. The October 2015 VA examiner noted the Veteran has limited opening of 30 millimeters and his morning muscle pain in his jaw indicates that he clenches during the night. The examiner concluded that it is not likely that the malocclusion was subject to injury or aggravated by service – it is a congenital condition and the Veteran was not subjected to trauma. In the June 2019 addendum medical opinion, the medical opinion provider opined that the Veteran’s claimed right-side TMJ disability is less likely than not proximately due to or the result of his service-connected major depressive disorder. Based on a thorough review of the records, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s TMJ is attributable to military service. The Veteran's service treatment records clearly note the Veteran’s complaints of right TMJ pain and locking and a diagnosis of disk displacement with reduction with intermittent disk displacement without reduction or disk adhesion. Although the March 2010 and October 2015 VA examiners did not establish a nexus between the Veteran’s current diagnosed disability and military service, the Board finds the opinions lack probative value because the examiners did not address the Veteran’s in-service complaints of right TMJ pain and locking, nor his continued complaints of TMJ symptoms post-active duty service. The Board finds the Veteran’s statements regarding experiencing popping/clicking and having episodes of his jaw locking to be credible, and the Board can find no basis on which to question his credibility. Accordingly, as the evidence of record is at least in relative equipoise, the benefit of the doubt rule applies. Resolving reasonable doubt in the Veteran’s favor, service connection for right side TMJ is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38U.S.C.§ 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (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. Entitlement to a compensable rating for skin disability from October 22, 2015 The Veteran contends that he is entitled to a compensable rating for his service-connected skin disability currently diagnosed as eczema and lichen planus. His skin disability has been rated 0 percent since October 22, 2015 under 38 C.F.R. § 4.118 Code 7806 (dermatitis or eczema). The Board notes that during this appeal period, changes were made to 38 C.F.R. § 4.118, Code 7806, effective August 13, 2018. Importantly, VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. In this case, under both the former Code 7806 approach and the revised General Rating Formula that includes Code 7806, the Veteran is not entitled to a compensable rating. Under former Code 7806 (dermatitis or eczema) a 0 percent disability rating requires less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is assigned for dermatitis or eczema affecting at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas, or; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis or eczema affecting at least 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is assigned for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118, Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. A disability under Code 7806 may also be rated as disfigurement of the head, face, or neck (Code 7800), or scars (Code 7801-7805) depending on the predominant disability. 38 C.F.R. § 4.118. Under the revised schedule of skin ratings, effective August 13, 2018, Code 7806, dermatitis or eczema, is rated under the General Rating Formula for the Skin (General Rating Formula), Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. 38 C.F.R. § 4.118. Under the General Rating Formula, a 0 percent disability rating is assigned when there is no more than topical therapy required over the past 12-month period and at least one of the following characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected or rate as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. A 10 percent disability is assigned if there is at least one of the following characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. Higher ratings of 30 or 60 percent are warranted based on a higher degree of affected areas or higher frequency of systemic therapy. The 10, 30, and 60 percent criteria list examples of types of systemic therapy as including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. 38 C.F.R. § 4.118. Effective August 13, 2018, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). While the Veteran contends that a compensable disability rating from October 22, 2015 is warranted, the weight of the evidence, both lay and medical, does not support this contention. On examination in October 2015, the Veteran reported a history of successful treatments of his skin disorder with oral corticosteroid therapy for four of the past five years. His diagnosed skin disability was lichen planus, which was in remission with the percent of body surface area involved being low at the time of the October 2015 examination. The total body surface area at that time was less than 1 percent. The Veteran described functional impact related to his skin disability only upon severe exacerbation, the last occurrence being in service in 2003. Based on these findings, the Veteran was assigned a noncompensable rating for his service-connected skin disability effective from October 22, 2015. In an April 2019 VA skin diseases examination report, the examiner noted that the Veteran’s skin disability was presently in remission, as he was not having, nor had he had an exacerbation of the skin lesion nor had any treatments within the last 12 months. At the time of the examination, the Veteran was not taking any oral medications or had used topical medications. He reported that he stopped all medication and had been very stable. He stated that if he gets an active “itch” it is most likely on the inner right arm or on the epigastric area. The diagnoses were eczema and lichen planus. On physical examination, the Veteran had lichen planus covering less than 5 percent of the total body area and no exposed areas. His skin disability was without any visible characteristic lesions at the time of the examination. It was again noted that the Veteran’s skin disability was presently in remission. The Veteran’s skin disability did not cause scarring or disfigurement of the head, face or neck. The examiner noted that the working diagnosis is lichen planus, which is a chronic inflammatory and immune mediated disease. It is the same autoimmune disorder for which the Veteran is service connected. There was no functional impact on the Veteran’s ability to work due to his skin disability. The examiner noted that on evaluating the Veteran’s current level of severity of his skin disability, there is no objective evidence to indicate a worsening or progression of the disability. He has a history of lichen planus lesions, which are red, round to elliptical, and very small, which is typical for such disorder. Since the Veteran’s skin disability is currently in remission, the current percent of body surface area involved is low. He is not currently taking any immunosuppressive drugs, steroids, retinoids, biologics, photochemotherapy, or PUVA treatments. There is no functional loss for skin lesions attributable to the service-connected disability. There is no pain, weakness, fatigability or incoordination that significantly limits functional ability during flare-ups. Currently there is no manifestation of the service-connected skin disability. Accordingly, based on a review of the evidence, both lay and medical, for the period from October 22, 2015, a compensable rating for the Veteran’s skin disability is not warranted. The Board has also considered all potentially applicable diagnostic codes that rate his skin disorder. Of note, the Board has considered whether a compensable rating is appropriate under Codes 7800 through 7805, which compensates for scarring. 38 C.F.R. § 4.118. The Board notes that it is indicated in the April 2019 VA examination report that the Veteran’s service-connected skin disability has caused no scarring or disfigurement of the head, face, or neck, and he did not have any other pertinent physical findings, complication, conditions, signs and/or symptoms related to his skin disability. Therefore, those codes are not for application at this time. The Board notes that the December 2017 Board remand directed that an examination of the Veteran’s skin disability be conducted during a period when there is a flare-up. This was based upon the October 2015 examiner’s review that the Veteran’s skin disability (lichen planus) is an autoimmune disorder which, though very common, is not well understood and is characterized by waxing and waning lesions and usually responds well to steroid therapy. The April 2019 examination was not conducted during a flare-up of the Veteran’s skin disability. However, the Veteran informed the examiner that if he gets an active “itch” it is most likely on the inner right arm or on the epigastric area. He did not provide an approximation of the severity of the skin disability during such flare-up or report any increased symptoms or limitations for consideration by the examiner, but reported he stopped all medication and his skin disability had been very stable. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Given that the Veteran has not reported symptoms consistent with a compensable evaluation even during flare-ups, the Board finds that this examination is adequate for rating purposes and is in substantial compliance with the Board’s December 2017 remand directive. A total disability rating based upon individual unemployability is not inferred in this instance, as it is found in the record that the Veteran works full-time in a military program as a civilian employee. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the RO has raised the issue of an extraschedular rating in this matter and has considered referring the issue of a compensable rating for a skin disability from October 22, 2015 to the Director of Compensation Service (Director) for a possible extraschedular evaluation. The RO determined that referral to the Director is not warranted because there is no evidence of marked interference with employment or frequent periods of hospitalization associated with the Veteran’s claim for a compensable rating for his service-connected skin disability. The Board concurs with this finding, given the evidence described above. Neither the Veteran nor his representative has 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). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.