Citation Nr: 21073872 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-19 363A DATE: December 13, 2021 ORDER Entitlement to an initial 10 percent disability rating from March 20, 2014 to March 4, 2020 for traumatic injury to lower mandibular dentition, residual of hit to the jaw, is granted. REMANDED Entitlement to service connection for left knee degenerative joint disease is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a disability rating in excess of 10 percent from March 5, 2020 for TMJ disorder associated with traumatic injury to lower mandibular dentition, residual of hit to the jaw is remanded. FINDINGS OF FACT Prior to March 5, 2020, the Veteran's traumatic injury to lower mandibular dentition, residual of hit to the jaw, was manifest by occasional locking of the jaw with pain and resulting difficulty eating. CONCLUSIONS OF LAW The criteria for a disability rating of 10 percent, and no higher, prior to March 5, 2020 for traumatic injury to lower mandibular dentition, residual of hit to the jaw, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.150, Diagnostic Code 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from 1966 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented sworn testimony at a hearing before the undersigned in July 2021. The Board notes that subsequent to the May 2016 statement of the case (SOC), the RO further adjudicated the Veteran's claim regarding his service-connected jaw disability in February 2020 and July 2021 rating decisions. The Board notes that although no subsequent supplemental statement of the case (SSOC) has issued, neither the Veteran nor his representative has withdrawn the issue and, as such, it is still in appellate status. See, Hamilton v. Brown, 4 Vet. App. 528, 541 (1993) (holding that once a claim is in "appellate status" by virtue of a previously filed NOD, the claimant may not file an additional NOD which could confer jurisdiction on the United States Court of Appeals for Veterans Claims (CAVC) as to that claim). Once a claim is placed in appellate status, that issue remains part of the pending appeal and cannot be separately appealed by filing a new NOD. As the CAVC made clear in Hamilton, "there can be only one valid NOD as to a particular claim, extending to all subsequent [regional office] and [Board] adjudications on the same claim until a final [regional office] or [Board] decision has been rendered in that matter, or the appeal has been withdrawn by the claimant." Id. at 438. 1. Entitlement to an initial compensable disability rating prior to March 5, 2020 for traumatic injury to lower mandibular dentition, residual of hit to the jaw. The Veteran asserts that he is entitled to a compensable disability rating prior to March 5, 2020 for his traumatic injury to lower mandibular dentition, and in excess of 10 percent thereafter for TMJ disorder associated with traumatic injury to lower mandibular dentition, residual of hit to the jaw. 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). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In addition, if we have sufficient data to rate the disability under the revised criteria and there is no other reason to remand, please insert the following language: In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Prior to March 5, 2020, the Veteran's traumatic injury to lower mandibular dentition was rated under 38 C.F.R. § 4.150, Diagnostic Code 9904. Under DC 9904 prior to September 10, 2017, a noncompensable rating is warranted for slight displacement of the mandible; a rating of 10 percent for moderate displacement; and a rating of 20 percent for severe displacement. A Note to Diagnostic Code 9904 stated that the rating is dependent upon degree of motion and relative loss of masticatory function. From March 5, 2020, the Veteran's condition was rated under 38 C.F.R. § 4.150, Diagnostic Code 9904. Under DC 9904 beginning September 10, 2017, a noncompensable rating is warranted for displacement, not causing anterior or posterior open bite. A 10 percent rating is warranted for displacement, causing moderate anterior or posterior open bite. A 20 percent rating is warranted for displacement, causing severe anterior or posterior open bite. Under the prior schedular criteria for 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. 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; and a maximum 40 percent rating is warranted when inter-incisal range is limited from 0 to 10 mm. A note provides that ratings for limited inter-incisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. 38 C.F.R. § 4.150. 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 40 percent; 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. The Veteran was afforded a VA dental and oral conditions examination in November 2014. A diagnosis of traumatic injury to left lower dentition was noted. No facial deformity or scarring due to the condition was noted and the absence of multiple posterior mandibular teeth were deemed unrelated to the traumatic injury. A November 2014 VA treatment record notes the Veteran's service-connected jaw injury "has not created any inability for [him] to have normal jaw function given that the incident occurred 45 years ago." It was noted that he can chew his food and has no overt facial deformity or loss of feeling. No injury-related difficulty in swallowing his food was noted. The Veteran was afforded a VA oral and dental conditions examination in January 2020. The Veteran reported worsening jaw issues. Upon examination, it was noted that the Veteran had lost more than half of his maxilla. The Veteran reported that his jaw locks every once in a while, has tingling in his ears, that his jaw clicks on the left, that his jaw hurts on opening on the right side, and that this pain makes it hard to concentrate and work. The Veteran was afforded a VA oral and dental conditions examination in June 2021. A diagnosis of traumatic injury to lower mandibular dentition, residual of hit to The Veteran reported that his jaw condition has stayed the same since being kicked in the jaw in the 70's. He reported that when he opens his mouth he hears clicking and has ever since the injury occurred. He reported clicking and pain when he chews. It was noted that the new diagnosis is a correction of the previous diagnosis. The Veteran was afforded a VA TMJ examination in June 2021. The Veteran reported lower jaw pain that comes and goes when he chews. Upon examination, pain was noted as not resulting in a functional loss. Right and left lateral excursion was measured as greater than 4mm. Pain was noted with chewing, as was localized tenderness and crepitus. Mild severity was noted. No additional loss of function or range of motion was noted after repetitive use testing. The examiner noted that the examination is medically consistent with the Veteran's statements describing functional loss over time and stated that neither pain, weakness, fatigability, nor incoordination would significantly limit functional ability with repeated use over time and estimated right lateral excursion as greater than 4mm bilaterally. The examiner noted that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups and stated that neither pain, weakness, fatigability, nor incoordination would significantly limit functional ability during flare-ups and estimated right lateral excursion as greater than 4mm bilaterally. No dietary restrictions were noted. The Veteran testified at the July 2021 Board hearing that at the time of the November 2014 examination his jaw had "crackling sounds" when he opened it and was "having some difficulty chewing." He stated that "every now and then [his jaw] locks up" and he will "get a sharp little pain". He further stated it's as though "something [will] catch [his] jaw and it holds for a few seconds or so, and then [he will] have to move [his] jaw around to start to get it to work again." He stated that this has been ongoing and that during flare ups he has less motion and has to move his jaw around to get it back to working. Here, the Veteran has credibly testified that his jaw condition at all times relevant to this appeal has been manifested by occasional locking with difficulty chewing and a sharp pain upon which he has to move his jaw around to return to normal functioning. The Board notes that the Veteran is certainly competent to report the symptoms he experiences. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Burton v. Shinseki, 25 Vet. App. 1 (2011). In light of the above, the Board finds that from March 20, 2014, the date of service connection, to March 4, 2020, the manifestations Veteran's jaw condition more closely approximates the criteria for 10 percent, and no higher, under Diagnostic Code 9905. REASONS FOR REMAND 1. Entitlement to service connection for left knee degenerative joint disease is remanded. The Veteran and his representative have argued that the Veteran's degenerative joint disease is due to the physical nature of his duties while in service. According to McLendon v. Nicholson, 20 Vet. App. 79 (2006), when required to adequately adjudicate the claim, VA must provide a medical examination assessing the Veteran's claimed disabilities or conditions. Here, the Veteran has a current diagnosis of left knee degenerative joint disease and has alleged in-service injury and/or illness as possible etiologies. As such, a remand for a VA examination is required. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran and his representative have argued that the Veteran's sleep apnea began while in service. Here, the Veteran has a current diagnosis of sleep apnea and has alleged in-service snoring and stopping breathing while asleep. As such, a remand for a VA examination is required. McLendon. 3. Entitlement to a disability rating in excess of 10 percent TMJ disorder associated with traumatic injury to lower mandibular dentition, residual of hit to the jaw. As noted above, the Veteran's jaw disability remains in appellate status. The Veteran testified at the July 2021 Board hearing that he has lost teeth due to his jaw condition and that sometimes his jaw locks up, causing him to have to move his jaw to get it to work properly, as well as causing difficulties with eating. The Board notes that locking was noted on the July 2021 Board hearing. As the Veteran has asserted symptoms that were not noted on the July 2021 Board hearing, a remand is required to determine the current severity and manifestations of his TMJ disorder associated with traumatic injury to lower mandibular dentition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his left knee degenerative joint disease. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is left knee degenerative joint disease at least as likely as not related to service? Provide a rationale to support the opinion. The examiner must address the January 2014 VA treatment record in which the Veteran asserted that he had past left knee pain "due to old war injury from jumping out of [a] helicopter in Vietnam." The examiner must address the Veteran's statement at the July 2021 Board hearing that he feels as though his knee problems are due to his time with an ordnance company in Korea where he "did a lot of work with being on [his] knees" and stated in general that he performed a lot of physical labor while on active duty. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 2. Schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is sleep apnea at least as likely as not related to service? Provide a rationale to support the opinion. The examiner must address the Veteran's statement that his deceased wife told him during active duty that he snored loudly and stopped breathing while sleeping. The examiner must address the January 2014 VA treatment record which notes the Veteran reported that he only sleeps 4 hours and then is sluggish during the day. He reported a long history of night shift work for 12 years and having a short sleep for over 20 years. He further reported that his bedpartner has told him that he snores loudly and stops breathing. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his TMJ disorder associated with traumatic injury to lower mandibular dentition. The examiner should provide a full description of the disability and report all signs and symptoms. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.