Citation Nr: 21004643 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-20 221 DATE: January 27, 2021 ORDER Entitlement to an evaluation in excess of 20 percent disabling for temporomandibular joint disorder status post osteotomy is denied. FINDING OF FACT The Veteran’s temporomandibular joint disorder status post osteotomy has not been characterized by an interincisal range of 11 to 20 mm (under previous diagnostic criteria) or 21 to 29mm with dietary restrictions to soft and semi-solid foods. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for temporomandibular joint disorder status post osteotomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.150, Diagnostic Code (DC) 5003-9905. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to January 2002. In January 2019, the Board remanded the issue below on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to an evaluation in excess of 20 percent disabling for temporomandibular joint disorder status post osteotomy In a July 2016 rating decision, the AOJ continued a 10 percent evaluation for the Veteran’s temporomandibular joint disorder status post osteotomy. The Veteran disagreed with the evaluation. In a subsequent rating decision, the evaluation was increased to 20 percent, effective February 23, 2016. The Veteran has continued to disagree with the evaluation, therefore, the issue before the Board is whether the Veteran is entitled to an evaluation in excess of 20 percent from February 23, 2016, for his temporomandibular joint disorder status post osteotomy. The Veteran’s disability is rated under DC 5003-9905. Under DC 9905 prior to September 10, 2017, for limitation of motion of temporomandibular articulation: interincisal range of 0 to 10 millimeters (mm) warrants a 40 percent rating; 11 to 20 mm warrants 30 percent; 20 to 30 mm warrants 20 percent; and 31 to 40 mm warrants 10 percent. Range of lateral excursion of 0 to 4 mm warrants a 10 percent rating. Ratings for limited interincisal movement are not to be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150. Under DC 9905 beginning September 10, 2017, interincisal 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. Interincisal 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. Interincisal 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. Interincisal 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. 38 C.F.R. § 4.150. In June 2016, the Veteran attended a Temporomandibular Joint (TMJ) examination. The examiner diagnosed anterior displacement of Left TMJ, bruxism, and lockjaw. The Veteran reported numbness on the lower right jaw. No flare-ups were reported; however the Veteran did note functional loss and impairment as lockjaw when he yawns or eats. Upon examination, initial ROM testing of 45mm and 40mm after repetitive use was noted for inter-incisal distance. In December 2019, the Veteran attended a VA TMDs examination. The examiner diagnosed Post Mandibular Osteotomy with subjective paresthesias of the lower right jaw and mouth areas; Temporomandibular Joint Disorder and bruxism upper and lower anterior teeth. The Veteran stated current symptoms as generalized attrition, generalized lingual acid erosion due to acid regurgitation, and episodes of lock jaw and pain on yawning. No flare-ups, functional loss or functional impairment of the temporomandibular joint were noted. Upon examination, both initial ROM and ROM after repetitive use testing of 21-29mm was noted for inter-incisal distance. No mechanically altered foods diet requirement was indicated. The remaining medical evidence of record indicates complaints and treatment of the Veteran’s disability but none indicating a higher evaluation is warranted. Based on the foregoing evidence of record, the Board finds that a higher evaluation is not warranted for the entire appeal period. Prior to September 10, 2017, the evidence does not indicate that the Veteran’s disability manifested as interincisal range of 11 to 20 mm, warranting a higher 30 percent evaluation. Following this same date, the evidence does not indicate that the Veteran’s interincisal range of 21 to 29 mm manifested with dietary restrictions to soft and semi-solid foods that would warrant a higher 30 percent evaluation. In short, the preponderance of the evidence weighs against finding an increased   rating for the Veteran’s TMJ disability for the entire appeal period. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II, 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.