Citation Nr: 21067440 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-40 930A DATE: November 4, 2021 ORDER 1. The appeal challenging the propriety of the reduction in the rating for the Veteran's temporomandibular joint pain dysfunction (TMJ) from 20 to 10 percent effective June 1, 2013, is granted; restoration of a 20 percent rating from the effective date of the reduction is granted. 2. Entitlement to a rating in excess of 20 percent for TMJ is denied. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) proposed, and implemented, a reduction (from 20 to 10 percent) in the rating for the Veteran's TMJ (which had been in effect in excess of 5 years), effective June 1, 2013. 2. The reduction of the rating for the Veteran's TMJ was based on a single examination and resulted in a reduction in compensation; sustained material improvement that would be maintained under the ordinary conditions of life was not shown. 3. Prior to September 10, 2017, the Veteran's TMJ was manifested by inter-incisal range of 21-30 millimeters (mm); inter-incisal range limited to 11 to 20 mm was not shown. 4. From September 10, 2017, the Veteran's TMJ has not been manifested by inter-incisal range of less than 21 mm, or by dietary restrictions to mechanically altered foods. CONCLUSIONS OF LAW 1. The reduction of the rating for TMJ from 20 to 10 percent was not in compliance with governing regulations, and was not proper; restoration of the 20 percent rating from the date of reduction is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.150, Diagnostic Code (Code) 9905. 2. A rating in excess of 20 percent for the Veteran's TMJ is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.150, Code 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 2001 to September 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision, which (prospectively) reduced the rating assigned for TMJ dysfunction from 20 to 10 percent, effective June 1, 2013. In April 2021, a virtual Board hearing was held before the undersigned; a transcript of the hearing is in the Veteran's record. In May 2021, the Board remanded the appeal for additional development. [The Board's May 2021 remand also referred to the AOJ the matter of service connection for temporomandibular articulation surgical scars. A September 2021 rating decision granted service connection for scars, anterior to the right and left ears. Accordingly, that matter is no longer before the Board.] The Veteran was previously represented by Military Order of the Purple Heart (MOPH). August 2020 Department of Veterans Affairs (VA) correspondence notified the Veteran that MOPH is no longer accredited to represent him before the VA. He has not since appointed a new representative. Accordingly, the Board proceeds with the understanding that he is pursuing this appeal pro se. 1., 2. Restoration of a 20 percent rating for TMJ is granted; Entitlement to a rating in excess of 20 percent for TMJ is denied. Reduction Legal Criteria Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which the 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e). Under 38 C.F.R. § 3.344(a)(b)(c), ratings for disabilities that have continued at the same level for long periods (5 years or more) are subject to procedural safeguards that include that a rating for a disease subject to episodic improvement will not be reduced based on a single examination, except in those instances where all the evidence clearly warrants the conclusion that sustained improvement has been demonstrated. When a reduction is made without compliance with applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). General regulatory requirements for disability ratings must be met in determining whether improvement is shown. See Brown v. Brown, 5 Vet. App. 413 (1993) (wherein CAVC provided guidance for adjudications involving rating reductions). Noteworthy in that guidance is the admonition that when any change in evaluation is made the rating agency should assure itself that there has been an actual change in the condition and that to warrant a reduction it must be determined "that an actual improvement in disability occurred" in such a manner that the Veteran's ability to function under the ordinary conditions of life and work has been enhanced). See also 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The criteria for rating 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 updated criteria are outlined and addressed in the portion of this decision pertaining to the claim for increase, below.] Under the prior schedular criteria for Code 9905, limitation of motion of the TMJ warrants a 10 percent rating if there is limitation of inter-incisal range of motion of 31 to 40 mm; or limitation of 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. A (maximum) 40 percent rating is warranted when inter-incisal range is limited from 0 to 10 mm. 38 C.F.R. § 4.150 (2016). [A note provides that ratings for limited inter-incisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion.] Factual Background In July 2011, VA received the Veteran's claim for increase. He reported that his TMJ disability has increased in severity since his prior (June 2009) examination. On October 2012 VA TMJ examination, the diagnoses were TMJ and anterior open bite. The Veteran reported clicking, popping, and tenderness. He noted that he had undergone orthognathic surgery was still undergoing private treatment. He denied flare-ups. Initial ROM of testing showed lateral excursion was 0 to 4 mm, with objective evidence of painful motion that began at greater than 4 mm. Inter-incisal distance was 21 to 30 mm, with objective evidence of painful motion that began at 31 to 40 mm. Repetitive use testing showed lateral excursion was greater than 4 mm and inter-incisal distance was 31 to 40 mm. Clicking or crepitus was not found on examination. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. His TMJ did not impact his ability to work. A November 2012 rating decision proposed to reduce the rating for TMJ from 20 to 10 percent. The rating decision noted that October 2012 examination showed inter-incisal distance was 21-30 mm, with objective evidence of painful motion beginning at 31 mm. The AOJ proposed a 10 percent rating based on painful motion of the jaw under 38 C.F.R. § 4.59. In a January 7, 2013 statement, the Veteran disagreed with the proposed reduction. He explained that his jaw and teeth are not "fixed" (in place) following a recent surgery. He explained that he is still undergoing treatment and that his "body hasn't recovered." He found the proposal "not only morally reprehensible but utterly ridiculous" and asked that VA allow him to complete treatment for such disability before reducing the rating assigned. He wrote, "So yes I disagree with the decision made and if the logic of this letter is not enough I request a hearing." [The Board notes that the hearing request was received more than 30 days after the November 29, 2012 notification letter.] A February 2013 rating decision (prospectively) reduced the rating for TMJ from 20 to 10 percent, effective June 1, 2013. In a December 2013 statement, the Veteran disagreed with the reduction. He argued that such was improper, as the October 2012 examination report notes that initial inter-incisal ROM was 21 to 30 mm, a measurement "that equates to a 20% disability rating under diagnostic code 9905." He argued that repetitive use testing is meant to address any additional impairment, including functional loss due to pain or fatigue, and not to serve as the benchmark for rating. He also argued the examination failed to diagnose/acknowledge his reports of clicking or crepitation, despite mentioning such in the medical history portion. In a December 2014 statement, the Veteran reported that his July 2012 surgery has a 9-month recovery period. In a March 2016 statement, the Veteran reported continued trouble opening his mouth and expressed continued disagreement with the reduced rating assigned. At the April 2021 Board hearing, the Veteran testified that the (then) most recent VA examination (in October 2012) was conducted three months after his July 2012 jaw surgery. He testified that his jaw had not fully recovered from the surgery, and that recovery from such surgery can take six to nine months. His (then) representative argued that the October 2012 examination report was inadequate because it failed to address all of the Veteran's reports of symptoms and functional loss, and because it failed to address "whether there truly has been a sustained improvement." His (then) representative also argued that remand was warranted to obtain all records pertaining to the July 2012 surgery. Several weeks after the hearing, the Veteran submitted a VA Form 21-4142 which identified three non-VA providers. VA subsequently sent correspondence to all three providers requesting copies of all treatment records; two replied. [One of the providers who replied was Dr. J.M. (a non-VA dentist); his office provided a copy of a December 2011 CT examination report of the mandible and maxilla. The other provider who replied was Dr. D.K.; his office provided a copy of the July 2012 surgical report (bilateral discectomies of the temporomandibular joints with autogenous fat graft placement).] In May 2021, the Board remanded the claim for additional development, including to obtain all outstanding records and for an examination to assess the current nature and severity of the Veteran's TMJ. A subsequent May 2021 VA report of contact notes that VA spoke with a record keeper at the third identified medical facility, A.M.I. The employee indicated there is no record of the Veteran in their system. The VA employee obtained an alternative phone number for the facility online; that number merely provided a busy signal. Two letters were mailed to the provider; there was no response. The record request was closed due to no response. June 2021 VA correspondence notified the Veteran that VA has not been able to obtain records from A.M.I. On July 2021 VA (fee basis) TMJ examination, the diagnoses were TMJ, anterior open bite, and arthritis of the bilateral temporomandibular joint. The Veteran reported symptoms of jaw pain and soreness when trying to talk, "and then eventually popping." The Veteran "does not have frequent flare-ups per se because he manages his condition through stretching and tries never to do any sudden movements or speaking. He has learned to manage his condition. In one sense, he is in one long flare-up by constantly managing his condition so it is an ever-present background ache." He reported that he uses jaw exercises "otherwise pressure and pain builds up and fatigue, weakness, jaw pops out of place." Initial ROM testing showed right lateral excursion was 0 to 4 mm and left lateral excursion was greater than 4 mm; inter-incisal distance was greater than 34 mm. There was objective evidence of crepitus or clicking on the right side, but not left. There was no evidence of pain on passive ROM testing or on non-weight bearing testing. Repetitive use testing showed no additional loss of function or ROM. Based on examination and interview of the Veteran, the examiner estimated that there is no additional loss of ROM after repeated use over time and during flare-ups. The Veteran did not have dietary restrictions; there were no other pertinent physical findings, complications, conditions, signs, or symptoms. Analysis At the outset, the Board finds that the rating reduction in this case did not involve a violation of the due process provisions of 38 C.F.R. § 3.105(e). A November 29, 2012 letter notified the Veteran of the proposed reduction, that he had 60 days to present additional evidence showing that compensation should be continued at the prior level, and that he could request a predetermination hearing within 30 days. On January 7, 2013, VA received additional argument from the Veteran. And a February 2013 rating decision (prospectively) reduced the rating for TMJ from 20 to 10 percent, effective June 1, 2013. Given the process described above, the Board finds that the AOJ complied with the procedures required under 38 C.F.R. § 3.105(e) including notifying the Veteran of the proposed reduction and of his rights to a pre-determination hearing and to submit additional evidence in response; he was afforded the specified period of time to respond. Although he requested a hearing, such request was made more than 30 days after the November 29, 2012 notification letter. Accordingly, the analysis proceeds to whether the reduction was factually warranted. Upon longitudinal review of the record, the Board finds that the reduction in the rating for TMJ from 20 to 10 percent was improper because the October 2012 examination (on which the reduction was based) did not demonstrate improvement that reflects an improvement in ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000). That examination report notes that initial ROM testing showed inter-incisal distance was 21 to 30 mm, a measurement that warrants a 20 percent rating under Code 9905. Although objective evidence of painful motion was noted to begin at 31 to 40 mm, the Board generally agrees with the Veteran's December 2013 argument. In light of the objective initial ROM measurement, and with consideration of functional loss factors as discussed in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds that the October 2012 examination did not demonstrate an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work, particularly as it was conducted three months after his bilateral TMJ surgery. Accordingly, the Board finds that the reduction in the rating for TMJ from 20 to 10 percent was improper, and that restoration of a 20 percent rating from the effective date of the reduction, June 1, 2013, is warranted. Increased Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). "Staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's TMJ has been rated under Code 9905 throughout. The former criteria (prior to September 10, 2017) are outlined above (and will not be repeated here). Under the updated schedular criteria, 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 a 40 percent rating; 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 a 10 percent evaluation. 38 C.F.R. § 4.150. Notes to the updated criteria state that ratings for limited inter-incisal movement are not 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. Id. Because the regulation changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's TMJ disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also 38 U.S.C. § 5110(g). An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. § 3.400(o)(2). Consequently, the evaluation period for consideration here is from July 2010 (a year prior to the July 18, 2011 date of claim for increase). Factual Background The factual background of this appeal was outlined in the Reduction section above, and will not be repeated here. Analysis Upon restoration of the rating for the TMJ to 20 percent, what remains for consideration is the matter of entitlement to a rating in excess of 20 percent throughout. For the period prior to September 10, 2017, only the old criteria are for consideration. The Veteran's TMJ has been assigned a 20 percent rating for that period. The next higher (30 percent) rating is warranted when inter-incisal range is limited to 11 to 20 mm. The medical evidence of record does not show that prior to September 10, 2017, inter-incisal motion was ever limited to 11 to 20 mm. On October 2012 examination, inter-incisal distance was 21 to 30 mm (with objective evidence of painful motion that began at 31 to 40 mm); the Veteran denied flare-ups. Although crepitus was noted, there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The 20 percent rating assigned is consistent with the rating warranted when inter-incisal range is limited from 21 to 30 mm. His TMJ is not shown (or alleged) to have manifestations or cause impairment not encompassed by the schedular criteria, and referral for extraschedular consideration is not warranted. Turning to the period from September 10, 2017, the Board finds that the medical evidence weighs against a finding that a 30 percent rating is warranted under either the old or new criteria. Under the old criteria, the next higher (30 percent) rating is warranted when inter-incisal range is limited to 11 to 20 mm. Under the new criteria, a 30 percent rating is warranted for inter-incisal range of 11 to 20 mm without dietary restrictions to mechanically altered foods, or for inter-incisal range of 21 to 29 mm with dietary restrictions to soft and semi-solid foods. On July 2021 examination, initial ROM testing showed inter-incisal distance was greater than 34 mm. Repetitive use testing showed no additional loss of function or ROM. Based on examination and interview of the Veteran, the examiner estimated that there is no additional loss of ROM after repeated use over time and during flare-ups. Notably, the Veteran did not have dietary restrictions due to his TMJ, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. Such objective clinical findings weigh against the assignment of a 30 percent rating under the old or new criteria. His TMJ is not shown (or alleged) to have manifestations or cause impairment not encompassed by the schedular criteria, and referral for extraschedular consideration is not warranted. [Although the July 2021 examination suggests some improvement in his TMJ disability (in light of his July 2012 surgery and recovery period), the Board will not disturb the 20 percent rating assigned by virtue of the restoration above.] In sum, the Board finds that a rating in excess of 20 percent for TMJ (under the old criteria prior to September 10, 2017, and under both the old and new criteria from that date) is not warranted. Finally, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the record in the context of the instant claim for increase. The Veteran does not contend, nor has an examiner opined, that his TMJ renders him unemployable. The preponderance of the evidence is against this claim. The benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.