Citation Nr: 21069216 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 13-04 553 DATE: November 17, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for temporomandibular joint limitation (TMJ) is denied. Entitlement to an initial compensable rating for traumatic brain injury (TBI) is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for hypothyroidism is remanded. FINDINGS OF FACT 1. During the period on appeal, the preponderance of the evidence is against a finding that the Veteran's TMJ disability was productive of an inter-incisal range of less than 21 millimeters (mm), or that it required any dietary restrictions. 2. The Veteran's TBI manifested with slight memory problems, which were contemplated in his rating for PTSD, and for weekly non-prostrating headaches that did not interfere with his functioning prior to April 2018, when a separate rating for the headaches was established. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for TMJ disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.150, Diagnostic Code (DC) 9905. 2. The criteria for a compensable rating a TBI have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. § DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1997 to January 2011. He was awarded the Combat Action Badge and the Purple Heart medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2012, September 2012, and December 2019 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2015 decision, the Board, in pertinent part, denied entitlement to increased ratings for the service-connected TMJ dysfunction and hypothyroidism. Entitlement to an initial compensable rating for TBI with post-concussive headaches was remanded for additional development. The Veteran appealed the April 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Memorandum Decision, the Court partially vacated the Board's decision and remanded, in relevant part, the issues of entitlement to increased ratings for the TMJ dysfunction and hypothyroidism. In July 2017, the Board remanded these matters and entitlement to an initial compensable rating for TBI with post-concussive headaches for additional development. A December 2019 rating decision granted an increased, 10 percent rating for the TBI from April 3, 2018, and separately granted service connection for posttraumatic headaches and assigned a 30 percent rating from April 3, 2018. However, a May 2020 rating decision found it was clear and unmistakable error to assign the 10 percent rating for the TBI and instead assigned a combined 50 percent rating for the TBI and the Veteran's service-connected posttraumatic stress disorder (PTSD), finding that April 2018 and March 2020 VA examinations show the symptoms caused by the two disabilities cannot be differentiated. The 30 percent rating for posttraumatic headaches was not disturbed. INCREASED RATING Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. 1. Entitlement to an initial rating in excess of 20 percent for TMJ is denied. The Veteran has a current 20 percent disability rating for service-connected TMJ. pursuant to 38 C.F.R. § 4.150, DC 9905. The Veteran disagrees with the rating assigned. The criteria for ratings under Diagnostic Code 9905 were amended, effective September 10, 2017, and the updated schedular criteria are applicable as of that date. See 82 Fed. Reg. 36,080 (August 3, 2017). Under the prior version of Diagnostic 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. Higher ratings were assigned for inter-incisional range of 21 to 30 mm (20 percent), 11 to 20 mm (30 percent), or zero to 10 mm (40 percent). Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Under the revised criteria for temporomandibular disorder, effective only for the period beginning September 10, 2017, a 10 percent rating is warranted for a range of lateral excursion of 0 to 4 mm, or inter-incisal range of 30 to 34 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 20 percent rating is warranted for inter-incisal range of 30 to 34 mm of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, or inter-incisal range of 21 to 29 mm of maximum unassisted vertical without dietary restrictions to mechanically altered foods. A 30 percent rating is warranted for inter-incisal range of 30 to 34 mm of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, inter-incisal range of 21 to 29 mm of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, or 11 to 20 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Higher ratings are available for smaller inter-incisal ranges and/or increasing dietary 2. restrictions. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Notes to the amended version of Diagnostic Code 9905 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. In addition, 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. 38 C.F.R. § 4.150, DC 9905, Notes (1), (2), and (3). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Turning to the evidence, the Veteran was afforded a general VA examination in March 2011. Concerning his TMJ, he had tenderness in the jaw and was given a mouth guard and tramadol as needed for pain. He reported that the problem with his TMJ was minimal. He was able to chew solids and semisolids foods without problems. In an April 2011 dental VA examination, the Veteran reported that he had modified his eating habits by taking smaller bites and refraining from chewing gum or harder cuts meats. His maximum vertical opening was 24-26mm. He reported feeling significant resistance beyond 24mm. He also reported lack of endurance with his jaw movements, fatigue, and weakness. In January 2013, the April 2011 VA examiner rendered an addendum opinion indicating that the Veteran was able to perform repetitive testing without a change in range of motion. His maximum vertical opening was 24-26mm. In December 2013, the Veteran was afforded another VA examination for his TMJ. He reported flareups. He described flareups as his jaw hurting more sometime when he chews or open too wide. His pain during flareups was described as a 8 on a 10-point scale when most symptomatic, which significantly affected the left side. On examination, he had an inter-incisal distance of 21-30mm. Painful motion began at an inter-incisal distance of 31-40. Repetitive testing did not cause additional loss in range of motion but did cause pain on movement. In a January 2014 addendum opinion, the December 2014 VA examiner opined that they were unable to opine whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flareups or after repeated use over time. The examiner explained that the Veteran was not experiencing a flareup during the examination. In a March 2018 VA examination, the Veteran reported that he needs to eat soft foods in order to prevent aggravation of his TMJ symptoms. He had no flareups. On examination, he had an inter-incisal distance of 21-29mm. Pain was noted on the examination but did not cause functional loss. He also had crepitus. Repetitive range of motion testing did not cause additional loss in range of motion. The examiner was unable to estimate additional function loss during flareups or with repeated use over time. The examiner explained that he could not provide an estimation without resorting to mere speculation because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. It was documented that the Veteran did not have dietary restrictions. He had pain on passive range motion testing and during non-weightbearing. In an August 2021 VA examination, the Veteran reported flareups, which were detailed as chewing gum or tough meats causing flares with increased pain and decreased range of motion of the jaw. On examination, he had inter-incisal distance of 30-34mm. He did not have additional loss of range of motion with repeated testing, but did have pain, fatigue, and lack of endurance. The examination was medically consistent with Veteran's statements describing functional loss with repetitive use time during flareups. He would have additional functional loss during repeated use over time or with flareups of pain, fatigue, and lack of endurance. His inter-incisal distance during these times would be 21-29mm. He had no dietary restrictions. He had objective evidence of pain during passive range of motion or non-weightbearing status. VA treatment notes of record showed no greater limitation than reflected in the VA examinations record. Based on a review of record, the Board finds that a rating in excess of 20 percent under the former or current rating criteria for DC 9905 is not warranted. Throughout the period on appeal the evidence does not reflect that the Veteran's disability manifested with restriction to a diet of soft and semi-solid foods, as recorded or verified by a physician or inter-incisal range of 11-20mm. Throughout the period of appeal, the Veteran's inter-incisal range of TMJ has not been in an inter-incisal range of less than 21 mm. Under the new rating criteria, range of motion findings has shown an inter-incisal range of 21 to 29mm of maximum unassisted vertical opening but did not demonstrate dietary restrictions. Although the Veteran has represented that he has to eat soft food or chew in smaller bites, the record does not show that such dietary restriction has been recorded or verified by a physician. See 38 C.F.R. § 4.150, Diagnostic Code 9905, Note (3). Rather, the March 2018 and August 2021 VA examinations noted no dietary restrictions. In reaching this determination, the Board has considered and is sympathetic to the Veteran's report of pain and objective medical findings of tenderness on palpation and crepitus in his TMJ. While the VA examinations of record indicated that the that the Veteran would have additional functional limitations of fatigability, pain, and weakness during repeated use over time and during flareups, there is no indication these additional limitations, during periods of repeated use over time or during flareups, would manifest with reduced range of motion or in such a way that a different rating is warranted based on such symptoms. Accordingly, there is no basis upon which to award a rating higher than 20 percent under the relevant rating criteria. Based on the Veteran's symptomatology, the Board also concludes that there are no other applicable diagnostic codes that would warrant consideration for a higher rating. In sum, the Board finds that the criteria for a rating in excess of 20 percent have not been met at any time during the rating period, to even warrant consideration of staged rating(s). As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's claim is denied. 3. Entitlement to an initial compensable rating for TBI is denied. By rating decision in September 2012, service connection was granted for TBI with post concussive headaches. Given the significant residuals that commonly come from a traumatic brain injury, the rating schedule directs that separately diagnosed emotional/behavioral and physical dysfunctions are to be separately rated under the appropriate diagnostic code for that disability. All other symptoms are to be rated under the general TBI code. In this case, because neither the TBI code nor the headache code resulted in a compensable rating when service connection was granted, the disability was characterized as TBI with post concussive headaches. Notably, service connection was separately granted at the same time for PTSD at 50 percent and tinnitus at 10 percent. In a December 2019 rating decision, the TBI and post concussive headaches were separated, because the RO determined that the Veteran's memory loss warranted a 10 percent under the TBI diagnostic code, and his headaches warranted a 30 percent rating under the migraines diagnostic code. However, in a May 2020 rating decision, the RO found a clear and unmistakable error with the separate 10 percent under the TBI diagnostic code, because the symptom on which it was based (i.e., memory loss) was actually already considered in the 50 percent rating in effect for the service-connected PTSD. There is a law against rating the same symptoms multiple times under different codes. See 38 C.F.R. § 4.14. Therefore, the separate 10 percent rating for TBI was removed. The 30 percent rating for headaches remained, as did the 50 percent for PTSD. Because there were no symptoms attributed to the TBI that were not already contemplated by the PTSD and headache ratings, the TBI was combined with the PTSD, such that the disability was recharacterized as PTSD with TBI. In summary, the Veteran seeks a higher rating for his service-connected TBI, which is essentially non-compensable throughout the appeal period since January 2011 (because the symptoms that have been associated with it are separately rated with his 50 percent PTSD rating, his 30 percent headache rating, and his 10 percent tinnitus rating). The Board will analyze the claim to determine whether there are sufficient headache symptoms to warrant a compensable rating prior to April 3, 2018 (when the separate 30 percent rating went into effect) and whether there are other associated TBI symptoms that are not otherwise currently compensated throughout the appeal. Prior to April 3, 2018, the Veteran was assigned a noncompensable rating for his TBI under DC 8045-8100. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this instance, his TBI is evaluated for his associated headaches under DC 8100. 38 C.F.R. § 4.124a addresses neurological and convulsive disabilities. Diagnostic Code 8100 is for migraines. It sets forth a noncompensable rating for less frequent attacks (than that required for a higher rating). A 10 percent rating is assigned for characteristic prostrating attacks averaging 1 in 2 months over the last several months. When characteristic prostrating attacks occur on average once a month over the last several months, a 30 percent rating is assigned. The maximum rating of 50 percent is reserved for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Neither the rating criteria nor the Court has defined the term "prostrating." According to Webster's New World Dictionary of American English, Third College Edition 1080 (1986), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The term "productive of severe economic inadaptability" is not defined by VA regulations. The Court, however, has stated that this term is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). Diagnostic Code 8045 concerns residuals of a TBI. There are three main areas of dysfunction that may result from a TBI, each of which may require rating: emotional/behavioral, physical, and cognitive. Emotional/behavioral dysfunction is rated as a mental disability when such has been diagnosed. Physical dysfunction, which includes motor and sensory dysfunction like pain of the extremities or face as well as hearing loss and tinnitus, is rated under an appropriate Diagnostic Code. Cognitive dysfunction and subjective symptoms are rated pursuant to the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." For subjective symptoms, this table sets forth levels of impairment ranging from 0 to 2. There is no 3 or total level of impairment. A 0 level of impairment, which equates to a noncompensable rating, is assigned wen subjective symptoms do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships. Examples include mild or occasional headaches and mild anxiety. A level of impairment of 1, which equates to a 10 percent rating, is for three or more subjective symptoms that mildly interfere with the aforementioned. Examples include intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. A level of impairment of 2, which equates to a 40 percent rating, is for three or more subjective symptoms that moderately interfere with the aforementioned. Examples include marked fatigability, blurred or double vision, and headaches requiring rest periods during most days. Instrumental activities of daily living are activities other than self-care needed for independent living, such as meal preparation, housework/chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. Note (3). In the event of overlap between the facets and comorbid mental, neurologic, or physical disabilities, more than one rating based on the same manifestation is not permitted. Clearly separable manifestations are to be rated separately, but for manifestations that are not clearly separable only one rating is to be assigned under the most appropriate Diagnostic Code. Note (1). Turning to the evidence of record, in December 2010, the Veteran reported TBI related symptoms of "some" short-term memory problems, decreased attention, and difficulty concentrating. He did not have difficulties in executive functioning. VA treatment notes in February 2011 noted that the Veteran's cognitive screen showed all his cognitive skills were within normal. The Veteran was afforded VA examinations in August 2012 for his headaches and his TBI, during which he reported that he had weekly headaches as a result of his TBI. His headaches lasted hours in duration and were not associated with phonophobia, photophobia, nausea, or vomiting. The headaches were not incapacitating. He had no prostrating attacks. The examiner opined that the Veteran had recovered from his TBI and had no functional deficits due to TBI. Other issues were responsible for majority of the Veteran's symptoms. The TBI portion of the examination noted no deficits in any of the cognitive facets memory, judgment, orientation, motor activity, visual spatial orientation, and subjective symptoms other than headaches. There were no neurobehavioral effects. Communication and consciousness were both normal. In June 2015, VA treatment notes recorded cognitive problems of short-term memory difficulty and forgetfulness. In a July 2015 TBI VA examination, it was again documented that the Veteran had little to no deficits in all cognitive facets. The examination warranted a "0" level of impairment in each facet. Treatment notes of record show no additional limitations. The April 2018 VA examination was again normal in all TBI facets, with the exception of the headaches and PTSD symptoms. Although the Veteran indicated he felt he had a hard time communicating with people, objective testing confirmed normal communication ability. Based on the aforementioned, entitlement to a compensable evaluation for TBI is not warranted. The evidence of record does not reveal prostrating attacks of headache pain of the frequency contemplated by a compensable rating at any time prior to the separate rating for headaches was established. Rather, his headaches have been consistently described as not incapacitating and without prostrating attacks prior to April 3, 2018, when the separate rating went into effect under the headache code. Further, the evidence of record did not demonstrate different compensable TBI symptoms during the period of on appeal. Rather, the sole symptoms he had were associated with memory loss, which is considered in the Veteran's 50 percent rating for PTSD, and which has been in effect throughout the appeal. As the preponderance of the evidence is against a finding that the Veteran's TBI approximate the criteria for a compensable evaluation, entitlement to a compensable evaluation is denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for hypothyroidism is remanded. The Veteran is currently assigned a 20 percent rating for hypothyroidism. He disagrees with the rating assigned. In December 2020, a Board remand requested that the RO obtain an addendum opinion to address whether any post-service weight gain, fatiguability, mental sluggishness, or weakness related to the Veteran's hypothyroidism manifested during the period on appeal. In response, the RO obtained an August 2021 VA examination that noted fatigue and cold intolerance unrelated to myxedema, but did not address whether the Veteran's reported symptoms of mental sluggishness or weakness, as related to hypothyroidism, manifested within the period on appeal. Based on the aforementioned, further development is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the appropriate clinician to address the nature and severity of the Veteran's symptoms associated with the hypothyroidism during the period on appeal. The claims file should be made available and reviewed by the examiner; both lay and medical evidence should be considered. After a review of the claims file, the examiner should provide a response to the following: Provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) any post-service weight gain, fatigability, mental sluggishness, muscular weakness, or mental disturbances are symptoms of the service-connected hypothyroidism. See VBMS document labeled, Third Party Correspondence, receipt date 10/12/2012, Physical Evaluation Board Proceedings, receipt date 12/4/2010, STR, receipt date 4/27/2015, page 54,55 of 74. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.