Citation Nr: 21064607 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-27 864 DATE: October 21, 2021 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, for fractured jaw, for the period prior to November 20, 2020, is granted. A rating in excess of 40 percent for the period since November 20, 2020 is not warranted. FINDING OF FACT The Veteran's fractured jaw has resulted in functional loss of 0 to 10 mm of maximum unassisted vertical opening throughout the period on appeal. CONCLUSIONS OF LAW The criteria for entitlement to an initial disability rating of 40 percent, but no higher, for fractured jaw, for the period prior to November 20, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.150 Diagnostic Code 9905. The criteria for entitlement to an initial disability rating in excess of 40 percent for fractured jaw, for the period since November 20, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.150 Diagnostic Code 9905. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1964 to February 1966. He appeals an August 2016 rating decision grating entitlement to service connection for fractured jaw with a noncompensable evaluation. A February 2019 Board decision denied entitlement to a compensable rating for the Veteran's jaw disability. He appealed the Board's decision to the Court of Appeals for Veterans Claims (Court), which vacated and remanded the Board's decision in February 2020. Specifically, the Board relied on an inadequate January 2017 VA examination. The Board is satisfied that there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, The Veteran was afforded a new VA examination in November 2020 which the Board finds adequate for adjudication purposes. During the appeal, the Veteran was awarded an increased initial rating of 10 percent in an October 2020 rating decision, and a further increase to 40 percent, effective November 10, 2020, in an April 2021 rating decision. As these decisions did not result in a full grant of benefits sought on appeal, the issue of entitlement to an increased rating for fractured jaw is still on appeal. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and 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). Further, "[w]here 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." 38 C.F.R. § 4.7. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 1. Entitlement to an initial rating higher than 10 percent prior to November 10, 2020, and greater than 40 percent thereafter for fractured jaw. The Veteran seeks a higher rating for his jaw disability. After a review of the evidence, the Board finds that an initial rating of 40 percent, but no higher, is warranted for the entire period on appeal. The Veteran's jaw disability is rated at 10 percent prior to November 10, 2020, and 40 percent thereafter under 38 C.F.R. § 4.150, Diagnostic Code (DC) 9905, which compensates for limited range of motion due to temporomandibular joint dysfunction (TMJ). 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, the following ratings were available for limited motion of temporomandibular articulation: 20 percent for interincisal range of 21 to 30 mm; 30 percent for interincisal range of 11 to 20 mm; and, 40 percent 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, the following ratings have been available for TMJ when the interincisal range is: 30 to 34 mm of maximum unassisted vertical opening; - 20 percent is assigned with dietary restrictions to soft and semi-solid foods; and, - 30 percent is assigned with dietary restrictions to full liquid and pureed foods; 21 to 29 mm of maximum unassisted vertical opening; - 20 percent is assigned without dietary restrictions to mechanically altered foods; - 30 percent is assigned with dietary restrictions to soft and semi-sold foods; and, - 40 percent is assigned with dietary restrictions to full liquid and pureed foods; 11 to 20 mm of maximum unassisted vertical opening; - 30 percent is assigned without dietary restrictions to mechanically altered foods; and, - 40 percent is assigned with dietary restrictions to all mechanically altered foods; 0 to 10 mm of maximum unassisted vertical opening; - 40 percent is assigned without dietary restrictions to mechanically altered foods; and, - 50 percent is assigned with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, DC 9905. Per Diagnostic Code 9905, Note (1) states disability 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, Diagnostic Code 9905. In his October 2016 Notice of Disagreement (NOD), the Veteran reported pain and locking in his jaw, particularly when eating. He further reported that his jaw would shift such that he would unintentionally bite his lip or tongue. At his January 2017 VA examination, it was confirmed that the Veteran suffered from jaw pain and difficulty eating. Upon perfecting his appeal is May 2017, the Veteran reiterated that his jaw locks at times and he has great difficulty chewing. The Veteran was afforded another VA examination in November 2020. On that occasion, the Veteran reported severe flare-ups occurring several times per year which rendered his jaw locked shut. Relief has only been attained from a flare-up after the Veteran has physically manipulated his jaw back into place. The examiner determined that the Veteran's maximum interincisal distance during a flare-up was 0 to 10 mm. However, the examiner did not determine that the Veteran required a mechanically altered food diet. Overall, the evidence shows that the Veteran has suffered from flare-ups resulting in a locked jaw throughout the period on appeal. Although additional functional loss due to flare-ups was not documented in the medical evidence prior to the November 2020 VA examination, the Veteran has consistently complained of jaw-locking and significant trouble eating throughout the appeal. The Board finds it unlikely that his conditioned worsened to its present state on the day of the November 2020 VA examination. The Board finds it is more likely that the Veteran's significant eating problems and jaw-locking have been present throughout the period on appeal. In light of the foregoing, the Board finds that the Veteran's jaw disability has been manifested by 0 to 10 mm of maximum unassisted vertical opening throughout the period on appeal. However, at no time does the evidence show that the Veteran has been reduced to a diet consisting of all mechanically altered foods. Hence, an initial rating of 40 percent, but no higher, for the Veteran's jaw disability is warranted under both the old and new criteria. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel