Citation Nr: 21076277 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-00 013 DATE: December 23, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include temporomandibular joint disorder prior to March 9, 2021, is denied. Entitlement to a rating in excess of 20 percent for residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include temporomandibular joint disorder for the period following March 9, 2021, is denied. FINDINGS OF FACT 1. For the period from August 31, 2011, to March 9, 2021, the Veteran's residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include temporomandibular joint disorder, was not productive of an interincisal range of less than 30 millimeters (mm). There is no evidence of severe displacement or displacement, causing severe anterior or posterior open bite. 2. For the period following March 9, 2021, the Veteran's residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include temporomandibular joint disorder, was not productive of an interincisal range of 30 to 34 mm of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include temporomandibular joint disorder prior to March 9, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9904, 9905. 2. The criteria for a rating in excess of 20 percent for residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include temporomandibular joint disorder for the period following March 9, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9904, 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1978 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. By way of background, in a July 2015 decision, the Board remanded these matters to the RO for further development. Thereafter, in an October 2018 decision, the Board denied entitlement to service connection for a right shoulder disability and residuals of a fracture of the right cheek bone, and denied entitlement to increased ratings for the Veteran's service-connected residuals of a fracture of the left zygoma with metal plate insertion and sensory deficit of the distal tip of the right ring finger. The Veteran subsequently appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court issued a memorandum decision in which it vacated and remanded the October 2018 Board decision. In a December 2020 decision, the Board granted the Veteran's claim for an increased rating for his right finger disability. The remaining claims were remanded for additional development. The Veteran was granted service connection for his right shoulder disability in a May 2021 rating decision, and service connection for his residuals of a fracture of the right cheek bone in an October 2021 rating decision. These decisions represent a full grant of the benefits sought on appeal, and thus, the issues are no longer in appellate status. Entitlement to a rating in excess of 10 percent for residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include temporomandibular joint disorder prior to March 9, 2021, and in excess of 20 percent for the period following Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 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. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. 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, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. By way of history, the Veteran filed a claim for an increased rating for residuals, fracture left zygoma with metal plate insertion on August 31, 2011. A November 2012 rating decision denied the Veteran's claim for a rating in excess of 10 percent. At that time, the Veteran's condition was rated under Diagnostic Code 9999-9904. An August 2021 rating decision recharacterized the Veteran's residuals, fracture left zygoma, as temporomandibular joint disorder with fracture left zygoma with metal plate insertion and assigned an increased 20 percent rating, effective March 9, 2021. As noted above, in a subsequent October 2021 rating decision the Veteran was granted service connection for a right cheek bone disability, effective July 1, 1995. The October 2021 rating decision again recharacterized the Veteran's condition as temporomandibular joint disorder with fracture left zygoma with metal plate insertion and right cheek disability (hereinafter TMJ disorder). Notably, this resulted in a single 20 percent rating for the Veteran's left zygoma and right cheek conditions. In the decision, the RO explained that while the Veteran experienced pain due to his right cheek disorder, such pain was already considered in the assigned 20 percent rating, and to assign a separate rating for the right cheek condition would equate to pyramiding. To that extent, the Board acknowledges that the evaluation of the same disability or manifestation under different diagnostic codes constitutes pyramiding and must be avoided. See 38 C.F.R. § 4.14. At the onset, the Board acknowledges that the Veteran is in receipt of compensable ratings for migraine headaches and defective vision of the left eye, as related to his service-connected TMJ disorder. Accordingly, any symptoms related to headaches or the left eye will not be discussed herein, as the assigned ratings for those conditions are not before the Board. TMJ is rated under 38 C.F.R. § 4.150, DC 9905. The rating criteria provided by this diagnostic code were amended during the pendency of this appeal, effective September 10, 2017. See 82 Fed. Reg. 36080, 36,083 (August 3, 2017). Where the law or regulation changes after a claim has been filed or reopened, but before administrative or judicial process has been concluded, the version most favorable to the appellant will apply, unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 U.S.C. § 5110(g); VAOGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Desousa v. Gober, 10 Vet. App. 461, 467 (1997). Under the provisions of DC 9905 in effect prior to September 10, 2017, limited motion of temporomandibular articulation to an inter-incisal range of 0 to 10 mm warranted a 40 percent rating; 11 to 20 mm warranted a 30 percent rating; and 21 to 30 mm warranted a 20 percent rating. Also, a 10 percent rating is warranted when the range of lateral excursion is limited to 0 to 4 millimeters. Under the revised criteria effective from September 10, 2017, DC 9905 provides that an interincisal range of 0 to 10 mm of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods warrants a 50 percent rating and without dietary restrictions to mechanically altered foods warrants a 40 percent rating. An interincisal range of 11 to 20 mm of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods warrants a 40 percent rating and without dietary restrictions to mechanically altered foods warrant a 30 percent rating. An interincisal range of 21 to 29 mm of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods warrants a 40 percent rating; with dietary restrictions to soft and semi-solid foods warrants a 30 percent; and without dietary restrictions to mechanically altered foods warrants a 20 percent rating. An interincisal range of 30 to 34 mm of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods warrants a 30 percent rating; with dietary restrictions to soft and semi-solid foods warrants a 20 percent rating; and without dietary restrictions to mechanically altered foods warrants a 10 percent rating. Note (1) following the revisions to DC 9905 provided that ratings for limited inter-incisal movement may not be combined with ratings for limited lateral excursion. Note (3) following the revisions to DC 9905 provides that for VA compensation purposes, mechanically altered foods are defined as being 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. 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. 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. Turning to the medical evidence of record, the Veteran was afforded a VA examination in July 2013. The examiner noted a diagnosis of TMJ dysfunction. The Veteran reported flare-ups related to chewing tough meat and putting too much pressure on the left side. Range of motion (ROM) testing revealed lateral excursion of greater than 4mm, with no objective evidence of pain. The Veteran's ROM measured by inter-incisal distance was not recorded, but the examiner indicated that there was no evidence of painful motion. With repetitive-use testing, the Veteran's ROM with lateral excursion remained greater than 4mm. ROM for inter-incisal distance was greater than 40mm after repetitive use. No clicking or crepitation was noted. Additionally, no functional loss or functional impairment was found. An October 2013 VA treatment record reflects the Veteran had some tenderness at the plates of his face, but no redness or swelling and was assessed with face pain. At the time of the Veteran's August 2014 hearing, he testified that he experienced pain, loss of function in his cheek, and cracking and popping when he chews. A VA examination to assess the severity of the service-connected left zygoma fracture residuals conducted in January 2016 resulted in the conclusion by the VA examiner that the condition did not impact his ability to work. There was normal functioning of the temporomandibular joint and it was not indicated that there was any involvement of the mandible. Malunion or nonunion of the maxilla was noted with slight displacement. There was no loss of any part of the maxilla. A March 2021 Oral and Dental Conditions Disability Benefits Questionnaire (DBQ) shows a diagnosis of limitation of motion of the TMJ due to causes other than temporomandibular disorder. There was no evidence of loss of any part of the maxilla or hard palate. The Veteran did not have an injury resulting in malunion or nonunion of the maxilla. The record also includes a March 2021 Temporomandibular Disorder DBQ. At the time, he reported clicking and popping with jaw pain and facial sensitivity to touch. The Veteran reported flare-ups that resulted in morning jaw pain and soreness, sharp pain and popping on the left side of the jaw when he yawned, and an inability to eat breakfast. He reported alleviating the flare-ups by massaging his face and taking motrin, but that the pain did not go away until around noon. On ROM testing of both the left and right TMJ, the Veteran had lateral excursion of greater than 4mm, and inter-incisal distance of greater than 34mm. Painful motion was noted, but it did not result in functional loss. There was evidence of pain with chewing and localized tenderness or pain on palpitation, pain with passive motion, and no pain with non-weight bearing. There was no evidence of crepitus or clicking of the joints or soft tissue of the right TMJ. As to the left TMJ, the examiner noted clicking or popping of the left jaw around the ear, that was a 6/10 in severity. With repetitive-use and with flare-ups, fatigue and weakness were noted to cause functional loss of the right TMJ. Pain, fatigue, weakness, and lack of endurance caused functional loss of the left TMJ. ROM after repetitive-use revealed lateral excursion of 0-4mm on both sides, and inter-incisal distance of 30- 34mm. Estimated ROM with flare-ups revealed lateral excursion of 0-4mm on both sides, and inter-incisal distance of 21-29mm. The Veteran did not require a mechanically altered foods diet. He reported having to cut his food into smaller bites and avoiding chewy, hard, and tough foods. He also reported difficulty flossing and brushing his teeth, and needing to use an aid to keep his mouth open at the dentist. The examiner indicated that the Veteran's TMJ condition was manifested by continuous facial soreness with sensitivity to touch due to plates, frequent muscle fatigue with muscle spasms, pain, and tenderness with fatigue of the left jaw when in an open position for long periods of time, and frequent weekly clicking and popping with pain on the left jaw when opening wide to yawn. An increased rating of 20 percent for TMJ disorder may be assigned for the period from August 31, 2011 (date of claim), to March 9, 2021, under the provisions of DC 9905 in effect prior to September 10, 2017, if motion of temporomandibular articulation in the inter-incisal range was limited to 21 to 30 mm. Such motion was greater than 40 mm at the July 2013 VA examination, even with pain and after repetitive motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the January 2016 examiner noted normal functioning of the TMJ. As for the revised criteria, a 20 percent rating would be warranted for an inter-incisal range of motion of 30 to 34 mm of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods. The July 2013 and January 2016 VA examinations did not reveal any dietary restrictions caused by TMJ, and there is otherwise no clinical evidence for the period from August 31, 2011, to March 9, 2021, demonstrating that the criteria for an increased rating for TMJ disorder were met under the old or revised criteria codified at DC 9905. As such, a rating in excess of 10 percent for TMJ for this period cannot be assigned. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.150, DC 9905 (2016) (2020). An increased rating of 30 percent for TMJ disorder for the period beginning March 9, 2021, would require an interincisal range of 30 to 34 mm of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods. As indicated, the March 2021 VA examination indicated there were no dietary restrictions and there is otherwise no clinical evidence for the period beginning March 9, 2021, reflecting the findings required for a 30 percent rating for the Veteran's TMJ disorder under the revised criteria set forth at DC 9500. While the Board acknowledges that the Veteran endorsed cutting his food into smaller pieces and avoiding tough, chewy foods, this does not meet the requirement of full liquid and pureed foods under DC 9905. As such, a rating in excess of 20 percent for TMJ disorder for this period cannot be assigned. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.150, DC 9905. The Board has also considered whether an increased rating is warranted under Diagnostic Code 9904, under which the Veteran's disability was previously rated, and finds that it is not. There is no evince of severe displacement or displacement, causing severe anterior or posterior open bite, to warrant an increased 20 percent rating under the prior or updated versions of DC 9904 prior to March 9, 2021. The Board also notes that an increased rating is not warranted for the period following March 9, 2021, as under the prior and updated DC a 20 percent rating is the maximum rating under DC 9904. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.150, DC 9904. Separate 20 percent ratings for the Veteran's left and right side are not warranted as the currently assigned 20 percent rating is based upon limited painful inter-incisal motion of the Veteran's mandible. As noted above, the evaluation of the same disability or manifestation under different diagnostic codes constitutes pyramiding and must be avoided. See 38 C.F.R. § 4.14. Thus, only a single compensable rating for the Veteran's residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include temporomandibular joint disorder is warranted. For the reasons stated above, a rating in excess of 10 percent for residuals, fracture left zygoma with metal plate insertion and right cheek bone disability to include TMJ disorder prior to March 9, 2021, and in excess of 20 percent for the period following, must be denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.