Citation Nr: 21069665 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 08-38 786 DATE: November 19, 2021 ORDER Entitlement to an increased rating of 30 percent, but no higher, for temporomandibular joint syndrome (TMJ), prior to April 2, 2014, is granted. Entitlement to an increased rating of in excess of 30 percent from April 2, 2014, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Prior to April 2, 2014, when considering pain, flare-ups, and corresponding functional impairment, the Veteran's TMJ has been manifested by interincisal range of 11 to 20 millimeters (mm) of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. 2. From April 2, 2014, the Veteran's TMJ has not been manifested by interincisal range of 10 mm or less of maximum unassisted vertical opening and has not required a mechanically altered foods diet at any point during the appeal period. The Rating Schedule contemplates the Veteran's TMJ symptoms, to include pain and range of motion loss, as well as his functional loss. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 30 percent, but no higher, for TMJ, prior to April 2, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.150, Diagnostic Code 9905. 2. The criteria for an increased rating in excess of 30 percent for TMJ from April 2, 2014, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.150, Diagnostic Code 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1971. The Veteran appealed a March 2007 rating decision by the Agency of Original Jurisdiction (AOJ), increasing the Veteran's TMJ rating to 20 percent. A May 2012 Board of Veterans' Appeals (Board) decision remanded the issue for a new examination. An August 2014 rating decision granted an increased rating of 30 percent for TMJ effective April 2, 2014. A September 2017 Board decision also remanded the issue for a new examination. A February 2020 Board decision denied the claim regarding an increased rating for TMJ. The Veteran appealed the February 2020 Board decision to the Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded this issue to the Board for further proceedings consistent with the JMPR. In June 2021, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board additionally notes that the issue of TDIU was adjudicated and granted in a May 2021 Board decision, effective February 12, 2013. When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are 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). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). The Veteran's TMJ is rated under the provisions of 38 C.F.R. § 4.150, Diagnostic Code 9905. 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 Diagnostic Code 9905, for limited motion of temporomandibular articulation, provided a 20 percent rating for interincisal range of 21 to 30 mm, a 30 percent rating for interincisal range of 11 to 20 mm, and a maximum 40 percent rating for interincisal range of 0 to 10 mm. 38 C.F.R. § 4.150, Diagnostic Code 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 Diagnostic Code 9905, for temporomandibular disorder, when the interincisal range is 30 to 34 mm of maximum unassisted vertical opening, a 20 percent rating is assigned with dietary restrictions to soft and semi-solid foods; and, a 30 percent rating is assigned with dietary restrictions to full liquid and pureed foods. When the interincisal range is 21 to 29 mm of maximum unassisted vertical opening, a 20 percent rating is assigned without dietary restrictions to mechanically altered foods; a 30 percent rating is assigned with dietary restrictions to soft and semi-solid foods; and, a 40 percent rating is assigned with dietary restrictions to full liquid and pureed foods. When the interincisal range is 11 to 20 mm of maximum unassisted vertical opening, a 30 percent rating is assigned without dietary restrictions to mechanically altered foods; and a 40 percent rating is assigned with dietary restrictions to all mechanically altered foods. When the interincisal range is 0 to 10 mm of maximum unassisted vertical opening, a 40 percent rating is assigned without dietary restrictions to mechanically altered foods; and a 50 percent rating is assigned with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905. Pursuant to Diagnostic Code 9905, Note (1) states 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. June 2006 treatment records noted complaints of jaw pain, pain when chewing, joint noises, neck pain, headaches, ear pain, back pain, eye pain, twitching, muscle soreness, ringing in the ears, shoulder pain, and sinus congestion. However, it was not noted whether all subjective symptoms were related to the Veteran's TMJ. The Veteran visited the emergency room in December 2006 for TMJ pain and it was noted in treatment records his TMJ was exacerbated with chewing. The Veteran stated in January 2008 that he could barely open his mouth. The March 2008 examination report noted numbness of the right mandible, jaw locking and spasms intermittently, and vertical excursion of 23 mm. Medical evidence received in September 2008 included a letter by B.L., D.D.S., noting a limited ability to open the mouth to 25 mm and recommended a mandibular orthotic to limit painful symptoms. The Veteran stated in December 2011 that he had excruciating pain, an inability to adequately masticate foods, swelling of the jaws, and teeth grinding. The April 2014 examination report noted pins and needle sensation, clicking and popping, burning sensation, flare-ups every 3 months or so which require the Veteran to watch what he eats since he cannot eat foods that require a lot of chewing, and painful motion beginning at 11 to 20 mm. The May 2015 examination report noted swelling, flare-ups during the Winter season, stiffness, an ability to chew, but that the Veteran jaw gets tired, and inter-incisal distance of 28 mm. The September 2018 examination report noted the Veteran cannot chew hard foods and inter-incisal distance of 11 to 20 mm. The September 2021 examination report noted the Veteran has pain and cannot fully open during flare-ups, but on good days he has normal opening and closing, and inter-incisal distance of 21 to 29 mm. The September 2021 opinion noted the Veteran has learned to select foods which minimize flare-ups. Here, the Board finds that a higher 30 percent rating is warranted for TMJ throughout the period on appeal, prior to April 2, 2014, based on the Veteran's competent and credible reports of painful motion, flare-ups, and inter-incisal range between 11 to 22 mm. Importantly, the April 2014 examination report noted flare-ups every 3 months. Therefore, the Veteran must have had flare-ups prior to his April 2014 examination, especially when considering previous noted symptoms of intermittent joint noises, numbness, swelling, and locking, and emergency room visits. Previous examination reports did not adequately address flare-ups. Therefore, it is likely that the Veteran had limitations in range of motion during flare-ups that warranted a 30 percent rating at that time. Furthermore, pain was noted to begin at 11 to 20 mm. Under both the old and revised rating criteria, Diagnostic Code 9905 provides a 30 percent rating for interincisal range between 11 to 20 mm and, as such, a 30 percent rating, but no higher, prior to April 2, 2014, is assigned. A rating in excess of 30 percent is not warranted at any point during the period on appeal, prior to April 2, 2014 or from April 2, 2014, as the Veteran's interincisal range has not been demonstrated to be limited to 10 mm or less, even during repetitive motion and flare-ups, as required for a higher rating under the old and new revised rating criteria. Medical providers have not found the Veteran to have limitation of motion from 0 to 10 mm. Furthermore, while the Board acknowledges that the Veteran reported the inability and difficulty to eat certain foods, the evidence does not demonstrate that a physician has recorded or verified that the Veteran requires a mechanically altered food diet to warrant a higher rating under the revised rating criteria. The Veteran has generally noted that he is still able to open his mouth to a certain extent, even during flare-ups, and it is mostly solid and hard foods that the Veteran has difficulty eating. The Veteran has not provided such details as having to water down or blend up his foods. Accordingly, a rating in excess of 30 percent is not warranted. No other Diagnostic Codes may be considered. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board additionally notes that the Veteran has raised extraschedular consideration of his TMJ symptoms. See October 2008 Veteran statement; November 2021 informal hearing presentation (IHP). To accord justice to the exceptional cases where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to this disability. See 38 C.F.R. § 3.321(b). In Morgan v. Wilkie, the Court held that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered. See No. 17-0098 2019 U.S. App. Vet. Claims LEXIS 779, at *12-13 (May 16, 2019). In that case, the Court stated VA had powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code. Four such tools are secondary service connection, the assignment of a higher rating where there is a question as to which of two evaluations shall be applied if the disability picture more nearly approximates the criteria for that rating, resolving reasonable doubt in favor of the Veteran, and TDIU. Id. at *9-13. Here, the Board has previously adjudicated and assigned TDIU from February 12, 2013. In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential analysis to determine whether a case should be referred for extraschedular consideration. Step one is to determine whether the schedular rating adequately contemplates a Veteran's disability picture. If the criteria reasonably describe the Veteran's disability level and symptomatology, then his disability picture is contemplated by the Rating Schedule. The assigned schedular evaluation would, therefore, be adequate, and an extraschedular rating would not be required. If the schedular criteria do not contemplate the Veteran's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the Veteran's disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. Based on the above evidence, the Board finds that the rating criteria reasonably describe the Veteran's service-connected TMJ and its symptomatology. The Board has specifically considered the tool box described in Morgan. Importantly, the rating criteria contemplate the Veteran's key symptoms, namely range of motion loss and his functional loss, to include the distance the Veteran is able to open his mouth and the consumption of certain foods. Additionally, as noted above, the Veteran is awarded a 30 percent rating for the entire period on appeal based in part on limitation of motion, including during flare-ups. As such, painful motion has been considered in assigning the current rating under the Diagnostic Code. Although the Veteran has complained of other symptoms as numbness and burning and jaw locking and popping, the Board has considered this evidence and considered such symptoms to be included as part of the Veteran's overall TMJ jaw pain. The Veteran has mostly complained of his overall pain, and the numbness, burning, and jaw locking and popping are not as widely noted in medical evidence and such symptoms are inherent with pain and limitation of motion and functionality. Furthermore, the Veteran complaints of pain radiating to other parts of his body have already been considered on a secondary basis by previous rating decisions and Board decisions. The Veteran has already been granted service connection for various associated conditions, to include sinusitis, a back condition with associated radiculopathies and a cervical spine condition, an ear condition, and headaches. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate. Thus, extraschedular consideration is not warranted under 38 C.F.R. § 3.321(b)(1). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.