Citation Nr: 21075654 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-21 284 DATE: December 21, 2021 ORDER Entitlement to an initial compensable rating for right anterior disc displacement with reduction of the temporomandibular joint (TMJ) as secondary to service-connected paresthesia of the lingual branch of the right mandibular nerve following extraction of tooth #32 is denied. Entitlement to service connection for headaches, to include as secondary to service-connected paresthesia of the lingual branch of the right mandibular nerve following extraction of tooth #32, is granted. REMANDED Entitlement to a rating in excess of 10 percent for lumbosacral disc herniation is remanded. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), to include the symptoms associated with a sleep disorder, is remanded. Entitlement to an initial compensable rating for paresthesia of the lingual branch of the right mandibular nerve following extraction of tooth #32 is remanded. FINDINGS OF FACT 1. The Veteran's right anterior disc displacement with reduction of the TMJ has been manifested by interincisal range limited to no less than 48 millimeters and lateral excursion limited to no less than 8 millimeters. 2. Resolving all reasonable doubt in the Veteran's favor, his chronic headaches manifested in service with a continuity of symptomatology after separation. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for right anterior disc displacement with reduction of the TMJ are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.150, Diagnostic Code 9905. 2. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 2010 to February 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2013, August 2014 and March 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. 1. Entitlement to a compensable rating for right anterior disc displacement with reduction of the temporomandibular joint (TMJ) as secondary to service-connected paresthesia of the lingual branch of the right mandibular nerve following extraction of tooth #32 is denied. A June 2017 rating decision granted service connection for right anterior disc displacement with reduction of the temporomandibular joint and assigned a noncompensable rating, effective February 26, 2013. The Veteran contends that he is entitled to a higher rating. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will consider entitlement to staged ratings to account for variations in the severity of a disability over time. Id. The Veteran's right anterior disc displacement with reduction of the TMJ is currently assigned a noncompensable rating under 38 C.F.R. § 4.150, Diagnostic Code 9905. The criteria for Diagnostic Code 9905 do not provide for a zero percent rating. However, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Under Diagnostic Code 9905, a 10 percent rating is assigned when the Veteran has lateral excursion range of motion of 0 to 4 mm., or 30 to 34 mm. of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods. A 20 percent rating is assigned when there is 30 to 34 mm. of maximum unassisted vertical opening with diet restrictions to soft and semi-solid foods, or if there is a 21 to 29 mm. maximum of unassisted vertical opening without dietary restrictions. 38 C.F.R. § 4.150, Diagnostic Code 9905. 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, Note (3). The Veteran was provided a VA TMJ conditions examination in June 2017. The examiner noted the Veteran reported numbness on the right side of his tongue following extraction of teeth in September 2011. The examiner noted that a December 2012 treatment records reported that the Veteran complained of jaw cracking and locking since having his wisdom teeth removed. In December 2012, he reported that his jaw sometimes locks up in closed position due to right jaw tightness. The examiner noted that he was diagnosed with right anterior disc displacement with reduction. The Veteran reported experiencing flare-ups of the temporomandibular joints. The Veteran described the flare-ups. He reported his muscle tightens when eating steak or talking a lot and will begin to lock closed, but he can work it to get himself be able to open again." Range of motion testing showed right lateral excursion of 10 millimeters and left lateral excursion of 8 millimeters. No pain was noted during the examination for either movement. The inter-incisal distance was 48 millimeters. The right and left TMJ were not examined immediately after repetitive use over time. The examiner stated that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time. The right and left TMJ were not examined immediately during a flare-up. The examiner stated that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with flare-ups. Considering all relevant evidence of record, the Board concludes that for the period on appeal, the Veteran's right anterior disc displacement with reduction of the TMJ has been manifested by interincisal range limited to no less than 48 millimeters and lateral excursion limited to no less than 8 millimeters, which does not warrant a compensable rating under Diagnostic Code 9905. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for right anterior disc displacement with reduction of the TMJ. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for headaches, to include as secondary to service-connected paresthesia of the lingual branch of the right mandibular nerve following extraction of tooth #32, is granted. The Veteran contends that he has a headache disorder that was caused by his active service, as he began experiencing headaches after an in-service dental procedure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Presumptive service connection may be established for certain chronic diseases, such as headaches or other organic diseases of the nervous system, which manifest to a compensable degree within one year of separation from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. When such a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A November 2012 service treatment record reported that the Veteran had been experiencing headaches for three to four months. He reported he had headaches three to four days of the week that last one hour with 5-6/10 pain. The Veteran was diagnosed with headaches "migraine vs. other" and prescribed Zomig. A December 2012 service treatment record reported the Veteran had been having headaches since his wisdom teeth had been taken out. He was diagnosed with headaches and tinnitus that could be related to his migraine. A May 2013 VA psychology consult reported the Veteran's medical history included frequent headaches along with jaw pain and speech concerns secondary to wisdom teeth removal. The Veteran was discharged from active service in December 2013. Prior to his discharge, a December 2013 service treatment record reported that the Veteran was experiencing headaches on the right side of his head two to three times per week. He described the headaches as lasting for two to three hours. A September 2015 VA treatment note reported that the Veteran had a lot of dental problems and headaches. Although the Veteran initially filed his claim for service connection for headaches under 38 U.S.C. § 1151, at the Veteran's May 2017 Decision Review Officer Hearing, the Veteran's representative clarified that the Veteran's headaches are not claimed under 38 U.S.C. § 1151, rather the Veteran's headaches are secondary to the Veteran's paresthesia of the lingual branch of the right mandibular nerve. The Veteran was provided a VA headache examination in June 2017. The examiner reported the Veteran had never been diagnosed with a headache. The examiner did not provide an opinion. However, the examiner noted that "DENTAL NEEDS TO SEE THIS PATIENT IT IS RELATED TO WISDOM TOOTH EXTRACTION." Although the examiner concluded that the Veteran had never been diagnosed with a headache, service treatment records show that the Veteran was diagnosed with headaches subsequent to an in-service tooth extraction. Thus, the Board affords the examiner's conclusion that the Veteran had never been diagnosed with headaches no probative value, as a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). At the Veteran's June 2021 Board hearing, the Veteran testified that he had continued to experience headaches since his tooth extraction in service. He described experiencing headaches two to three time per week. As previously described, a review of the records shows the Veteran began experiencing headaches in service subsequent to a tooth extraction procedure. In December 2013, the month the Veteran was separated from service, he reported experiencing headaches two to three times per week. After discharge, the Veteran continued to experience headaches. The Veteran, as a layperson, is competent to report subjective symptoms like headaches. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds his statements regarding the in-service onset and continuing nature of his headaches to be both competent and credible. After careful review, the Board concludes that the Veteran's lay statements are sufficient to establish the presence of a current disability for service connection purposes. The Veteran's statements likewise reasonably establish a continuity of headache symptomatology since he began experiencing headaches in service subsequent to a dental procedure to extract his teeth. Accordingly, resolving all remaining reasonable doubt in the Veteran's favor, the Board finds that his chronic headaches manifested in service with a continuity of symptomatology thereafter. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Thus, entitlement to service connection for the Veteran's headache disorder is granted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for lumbosacral disc herniation is remanded. The Board finds that a remand is necessary before a decision on the merits of the claim can be reached. An April 2013 rating decision granted service connection for lumbosacral disc herniation and assigned a 10 percent rating, effective February 26, 2013, the day after discharge from active service. The Veteran contends that he is entitled to a higher rating. In March 2015, the Veteran submitted a back conditions disability questionnaire that was completed by a private primary care provider in October 2014. At the examination, the Veteran reported experiencing severe flare-ups of back pain. The examiner reported that the Veteran experiences pain with movement during flares but failed to estimate the degree of additional range-of-motion loss during flare-ups. If an examination does not take place during a flare-up, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran's lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the October 2014 provider made any attempt to ascertain adequate information from relevant sources to estimate the degree of additional range-of-motion loss during flare-ups. The VA has not provided the Veteran a VA back examination. The only back examination in connection with the Veteran's serviced-connected back disability is the inadequate private examination conducted in October 2014. Considering that there are no relevant contemporaneous medical records to document the current severity of the Veteran's back disability, and that it has been more than seven years since he was last examined, the Board finds that remand for a more contemporaneous and adequate VA examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). 2. Entitlement to an initial rating in excess of 30 percent for PTSD, to include the symptoms associated with a sleep disorder, is remanded. The Board finds that a remand is necessary before a decision on the merits of the claim can be reached. A May 2013 rating decision granted service connection for PTSD and assigned a 30 percent rating, effective May 19, 2015. The Veteran contends that he is entitled to a higher rating. The Veteran was provided a VA PTSD examination in July 2015. The examiner opined that the Veteran had symptoms resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation. In May 2017, the Veteran's representative submitted an April 2017 private psychological assessment. The examiner reported that the only records were reviewed were a rating decision and the July 2015 VA examination At the Veteran's June 2021 Board hearing, he testified that his PTSD symptoms had worsened and that he was now very isolated both at home and at work. The most recent VA examination in connection with the Veteran's service-connected PTSD was conducted over seven years ago, in July 2015. Considering that the Veteran has also reported during the June 2021 Board hearing that he has experienced increased symptomatology from his PTSD, a remand is warranted to obtain a contemporaneous examination to assess the severity of his PTSD. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 3. Entitlement to an initial compensable rating for paresthesia of the lingual branch of the right mandibular nerve following extraction of tooth #32 is remanded. The Board finds that a remand is necessary before a decision on the merits of the claim can be reached. A June 2017 rating decision granted service connection for paresthesia of the lingual branch of the right mandibular nerve following extraction of tooth #32 and assigned a noncompensable rating, effective February 26, 2013. The Veteran's paresthesia of the lingual branch of the right mandibular nerve is currently assigned a noncompensable rating under 38 C.F.R. § 4.124a, Diagnostic Code 8205. Under Diagnostic Code 8205, a 10 percent disability rating is assigned for moderate incomplete paralysis of the fifth trigeminal cranial nerve. A review of the record show that the Veteran has not been provided a VA cranial nerve condition examination. Thus, the Board finds that remand is warranted to obtain a VA cranial nerve condition examination to properly assess the severity of the Veteran's service-connected paresthesia of the lingual branch of the right mandibular nerve. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA and non-VA treatment records treatment records not evidenced by the current record and associate with the claims file. 2. Schedule the Veteran for a VA examination to assess the current severity of her service-connected back disability. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner along with any other information the medical professional deems pertinent 3. The examiner should conduct range of motion testing of the Veteran's thoracolumbar spine (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. If pain on motion is observed, the examiner should indicate the point at which pain begins. Any pain, weakened movement, excess fatigability or incoordination on movement must be noted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain the basis for this decision. 4. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his thoracolumbar spine due to pain or other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner concludes that an estimate of the range of motion during flare-ups cannot be provided without resorting to mere speculation, the examiner must support that opinion with a full and complete explanation as to why the examiner cannot provide the requested opinion without resort to mere speculation. 5. Schedule the Veteran for a VA examination to determine the current severity of his service-connected PTSD. The electronic claims file should be accessible to the examiner in connection with the examination. Any indicated tests and studies must be accomplished. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire. An explanation for all opinions expressed must be provided. 6. Schedule the Veteran for a VA cranial nerve condition examination to assess the severity of the Veteran's service-connected paresthesia of the lingual branch of the right mandibular nerve. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire 7. Upon completion of the above actions, readjudicate the claims. If any determination remains unfavorable to the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.