Citation Nr: 21004435 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 11-03 932 DATE: January 27, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for right mandibular fracture with temporomandibular joint (TMJ) dysfunction is denied. FINDING OF FACT The Veteran’s condition has not manifested to 0-10mm inter-incisal range of motion, or by interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening, with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 0 to 10 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods. CONCLUSION OF LAW The criteria for an increased rating in excess of 30 percent for right mandibular fracture with temporomandibular joint dysfunction (TMJ) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9904, 9905. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1970 to February 1971. In April 2015, the Board of Veterans’ Appeals (Board) granted a 30 percent rating for right mandibular fracture residuals with temporomandibular joint dysfunction. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims. In September 2016, the United States Court of Appeals for Veterans Claims vacated the April 2015 Board decision and remanded the appeal to the Board for additional development of the record. In March 2017 and February 2020, the claim was brought before the Board and was remanded for further development, which has been completed. As such the Board finds that the prior remand directives have been substantially complied with and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, 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 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). 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 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 provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Entitlement to an Increased Rating: Right Mandibular Fracture/TMJ The Veteran’s right mandibular fracture with TMJ dysfunction is currently is currently rated as 30 percent disabling under Diagnostic Code (DC) 9904-9905 for Temporomandibular Disorder. During the pendency of the Veteran’s appeal, a revised rating schedule for dental and oral conditions became effective on September 10, 2017. See 82 Fed. Reg. 36080, 36083 (August 3, 2017) (to be codified at 38 C.F.R. § 4.150, Diagnostic Codes 9900-16). Under DC 9904 prior to September 10, 2017, a noncompensable rating is warranted for slight displacement of the mandible; a rating of 10 percent for moderate displacement; and a rating of 20 percent for severe displacement. A Note to Diagnostic Code 9904 stated that the rating is dependent upon degree of motion and relative loss of masticatory function. Under DC 9904 beginning September 10, 2017, 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 the previous version of DC 9905, a 30 percent rating is assigned for limited motion of the temporomandibular articulation with an inter-incisal range of 11 to 20 mm, a 40 percent rating is assigned for an inter-incisal range of 0 to 10 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). Under the current version, DC 9905, a 30 percent evaluation is warranted for interincisal range of motion limited to 21 to 29 millimeters of maximum unassisted vertical opening, with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods. A 40 percent evaluation is warranted for interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening, with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 0 to 10 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods. Lastly, a 50 percent evaluation is warranted for interincisal range of motion limited to 0 to 10 millimeters of maximum unassisted vertical opening, with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2019). The Veteran contends that an increased rating is warranted in excess of 30 percent due to his ongoing symptomology associated with his TMJ including jaw pain, paresthesias on the right side soreness at times, limited movement, eating a diet of soft food at times and voiding chewing on his right side. In July 2007, the Veteran was seen at the VA medical center. The Veteran reported severe pain and paresthesias of the right jaw and side of face. He reported that medications are not helpful and wanted nerve blocks. The Veteran’s severe pain and paresthesias was noted on several VA visits in August 2007 through December 2007, to include notations of trembling and lock jaw. In October 2008, the Veteran was provided a VA examination. The Veteran reported not being able to eat on the right side of his mouth and headaches. He reported that his jaw sometimes pops and pain from his jaws and right side of head. He reported being miserable all the time. On examination, the mandible was without an alveolar ridge. He could not open without any distress. He could not go laterally very well at all, only going 1 to 2 centimeters. The Veteran’s right TMJ was sore to manipulation. The Veteran was seen at the emergency department at the VA medical center in December 2008. The Veteran reported pain on the right side of his around the TMJ. He reported being unable to chew on his right side. His TMJ disorder was noted as worsening. In November 2009, the Veteran was seen at the VA medical center. He reported throbbing jaw pain and not being able to chew on the right side. The Veteran did not have any issues with his speech or swallowing. In May 2011, the Veteran attended a VA examination. He reported not being able to chew on the right side due to pain. He reported the pain was an 8 out of 10, with 10 being the highest, and he only chews on his left side. The Veteran experienced pain on initial opening for range of motion and pain was noted on vertical opening and right lateral excursion. After three cycles of vertical opening and right lateral excursions, wider vertical opening appeared less painful. The Veteran did not have swelling or speech difficulty. No teeth were lost due to loss of substance of the maxilla or the mandible. There was no history of injury or malunion of the maxilla. There was no loss of bone of the mandible other than that associated with edentulism. X-rays did not reveal a nonunion or malunion in the mandible. There was no loss of bone of the hard palate, no evidence of osteoradionecrosis and no evidence of osteomyelitis. The Veteran’s range of motion was interincisal to 32 millimeters (mm), right lateral to 2mm, left lateral to 5mm, and protrusive was 5mm. The Veteran grimaced during the range of motion testing and rubbed his temporal area. Following 3 repetitions, the Veteran’s range of motion (ROM) was interincisal to 47mm, right lateral to 8mm, left lateral 5mm, and protrusive 6mm. All motion appeared to occur with less discomfort than when taking the original measurements. There was no evidence of weakness, lack of endurance, or loss of coordination. The examiner noted spontaneous tremors and pain in the area of the right ramus, TMJ and temporal area along with an inability to chew on the right side, have decreased the Veteran’s quality of life. In August 2014, the Veteran visited the VA medical center for an oral evaluation. The Veteran’s mandibular opening was 35mm at incisal edges. There was no pain on palpation of the TMJ regions and no submandibular lymphadenopathy noted. In August 2015, the Veteran was seen again for an oral evaluation. The Veteran had no pain on palpation of TMJ regions, and he reported no pain the areas. The mandibular opening was 40mm at incisal edges. In May 2016, the Veteran was seen at the VA medical center. The Veteran reported that much of his TMJ pain was gone. He reported it being a 1 out of 10. The Veteran complained of squeaking noise in the right TMJ area when he opens and closes. Examination showed mandibular opening of 35mm at incisal edges and was stiff to open on the right side. There was no pain on palpation of masseter areas or temporalis areas. There was no crepitus or other joint noise noted in either TMJ when patient opens and closes. He reported eating a soft diet. However, he reported chewing gum daily. The examiner advised the Veteran to not overuse and resting his TMJ and jaw muscles as he had some improvement. In July 2016, the Veteran was seen for an oral evaluation. The Veteran reported no symptoms associated with his TMJ. The Veteran reported no longer chewing gum and no pain or issues with his TMJ. There was no clocking or popping. There was no pain upon opening and no muscle soreness to palpation. The Veteran was advised of a soft diet if symptoms persist. In October 2019, the Veteran received a VA examination. The Veteran reported that his condition doesn’t hurt that much but he is unable to chew on the right side because his jaw doesn’t line up. The Veteran did not report flare-ups of the temporomandibular joints. He did report functional loss or impairment in not being able to chew on his right side. The Veteran’s ROM was inter-incisal distance of 30-34mm. ROM itself did contribute to functional loss with decreased ROM. There was no pain noted on examination. There was evidence of pain with chewing. There was no evidences of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of crepitus or clicking noted in the form of popping on the right side when opening. The Veteran was able to perform repetitive testing with at least three repetitions and there was no additional functional loss or ROM after three repetitions. The Veteran was being examined immediately after repetitive use over time and did not suffer from pain, weakness, fatigability, or incoordination that limited functional ability. There was no evidence of pain of the joint in non-weight bearing or passive range of motion. Further, the examiner noted that the Veteran does not require mechanically altered foods or diet. In November 2020, the Veteran received another VA examination. The Veteran reported tremors to the right side of his jaw and pain with chewing. The examiner noted a review of the Veteran’s claims folder including treatment records and prior examinations. He explained he is unable to chew on hard foods or chewy foods. The Veteran reported flare-ups of the temporomandibular joint stating it gets sore and shakes. The Veteran’s ROM was inter-incisal to 30-34mm. ROM itself did result in functional loss in decreased ROM. There was pain noted on examination, however, it did not result in functional loss. The pain noted occurred during mouth opening and right lateral excursion. There was objective evidence of pain with chewing and localized tenderness or pain on palpation. There was evidence of crepitus or clicking of the joint on the right side that was noted as moderate in severity. The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The examiner noted the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The Veteran did not suffer from pain, weakness, fatigability, or incoordination that limited functional ability with repeated use over time. However, pain, fatigue, and lack of endurance did cause functional loss with flare-ups. The loss in terms of ROM was right lateral excursion to 0-4mm. The examiner noted that the Veteran did not require mechanically altered food due to his disorder. There was no objective evidence of pain on non-weight bearing. Passive ROM was same as active ROM. Pain noted on passive ROM was the same as active ROM. After review of the evidence of record, the Board finds that a rating in excess of 30 percent is not warranted. Throughout the entire period on appeal, the Veteran’s mandibular disability has not manifested to 0-10mm inter-incisal range of motion, or interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening, with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 0 to 10 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods. The Board acknowledges 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 criteria when evaluating limitation of motion for joint disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. However, even when considering flare-ups and functional loss, to include pain, tremors, and issues chewing, the record does not include any medical reports, including VA treatment records and VA examinations, that demonstrate such limited motion to 0-10mm or dietary restrictions to mechanically altered food. Further, the Board has considered whether and increased rating is warranted based on active and passive motion and weight bearing and non-weight bearing. See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Further, the Board notes that during VA visits in 2015 and 2016, the Veteran reported improvement of his condition and at times reported no pain. The Veteran also reported decreases in pain during his October 2019 VA examination. While the Veteran reported more severe pain during VA visits in 2007 through 2011, the Board notes that the Veteran was still noted as having interincisal ROM of 35mm or higher. Moreover, he was also noted as having more range and less pain after repetitions. Although the Veteran has consistently reported issues with chewing, pain and paresthesias, the Veteran has not required dietary restrictions to mechanically altered food and has only reported not being able to chew food that is too hard or chewy and preferring soft food. In fact, the Veteran often reported still chewing gum almost daily during his VA treatment visits, at different points during the lengthy appeal period. In addition, the Veteran has never been noted as having difficulty with speech or any swelling. Lastly, while the Board acknowledges that the November 2020 VA examiner noted the Veteran was additionally limited due to pain, fatigue, and lack of endurance during flare-ups, the Board notes that the Veteran does not currently meet requirements of interincisal range of motion limited to 11 to 20 mm, or limited to 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening for a 30 percent rating under the previous or current version of the Diagnostic Code and his additional pain, fatigue, and tremor complaints were considered to afford the Veteran his 30 percent rating. Thus, the requirements of DeLuca were already considered and met in the rating provided. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. The Board has considered whether an increased 40 percent rating has been warranted during the appeal based on the Veteran’s ongoing reported symptoms of jaw pain, paresthesias, soreness, limited movements, and avoiding chewing on his right side at times with increased pain. However, the medical and lay evidence of record does not indicate that an increased 40 percent rating is warranted during the period on appeal. As noted above the Veteran’s interincisal range of motion has not been limited to 11 to 20 mm or limited to 21 to 20 mm with dietary restrictions to mechanically altered foods. The Veteran has often reported a preference for soft foods and an avoidance of chewy foods at times, however, as the VA examinations have consistently noted that the Veteran does not require a mechanically altered foods diet, which has been physician verified or documented. VA considered mechanically altered foods to be defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There is no objective evidence of such meeting the VA definition of mechanically altered foods. As such the Board finds that an increased 40 percent rating is not warranted. The Board has also determined whether a rating under another Diagnostic Code would be warranted. Dental and oral conditions are rated under DCs 9900 to 9916, depending on the affect part and symptomology. The Board notes that an increased rating is not warranted under DC 9904, as under the prior and updated DC a 20 percent rating is the maximum rating under DC 9904. However, at no time has the Veteran been noted as having loss of mandible, maxilla or mandible osteomyelitis or osteoradionecrosis, or loss of maxilla, or an issue involving the condyloid process or hard palate, which would warrant consideration under Diagnostic Codes 9900- 9916. See 38 C.F.R. §4.150, DC 9900-9916. The Board acknowledges the Veteran’s assertions that he is entitled to a higher rating because his symptoms are worse. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has thoroughly considered the Veteran’s statements and finds them credible and consistent with the rating assigned. Further the Veteran is competent to report his ongoing symptomology during the appeal. However, even in light of the Veteran’s lay statements an increased 40 percent rating is not warranted. Extraschedular consideration The Board notes that the evidence of record has previously raised the issue of potential entitlement to and referral for extraschedular consideration. As such the Board will consider whether referral on an extraschedular basis is warranted. 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 of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. The first element of extraschedular consideration requires a finding that the evidence “presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate.” See id. at 115. In order to determine whether a disability is “exceptional or unusual,” there “must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. “[I]f the [rating] criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required.” Id. The first Thun element is not satisfied here. The Veteran’s TMJ has been manifested by pain and paresthesias on the right side, soreness, limited movement, eating a soft diet at times and avoiding chewing on his right side with increasing pain at times. The Veteran reports ongoing difficulty with his right side TMJ with pain and numbness at times and a preference for eating soft foods, and often avoiding chewing on his right side at different times during the appeal. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the rating schedule for dental and oral conditions. See 38 C.F.R. § 4.150, Diagnostic Code 9904, 9905. The Board concludes that the schedular rating criteria reasonably describes the Veteran’s disability picture. While some of the Veteran’s symptoms are not expressly mentioned in the rating criteria, such as paresthesias and avoiding chewing on his right side these are contemplated by the criteria. The Veteran reports ongoing symptoms of pain and painful motion which was clearly contemplated in the currently assigned disability evaluations, and has been thoroughly consideration regarding the Veteran’s functional loss. VA and private treatment records consistently note the Veteran’s TMJ which results in jaw pain, paresthesias on the right side at times, soreness and reduced range of motion, with the Veteran eating a soft diet at times. In short, there is nothing exceptional or unusual about the Veteran’s TMJ disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. The Board has considered the general contentions within the record that referral for extraschedular consideration is warranted, however the evidence of record shows that the rating criteria for his TMJ reasonably describes the Veteran’s disability level and ongoing symptomology. Therefore, referral for extraschedular consideration is not warranted. In light of the foregoing, the Board concludes that a rating in excess of 30 percent for right mandibular fracture with TMJ dysfunction is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.