Citation Nr: 21013977 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-31 124A DATE: March 11, 2021 ORDER Prior to September 21, 2015, an initial rating of 20 percent, but no higher, for temporomandibular joint (TMJ) syndrome, status-post jaw surgery, is granted. From September 21, 2015, an initial rating in excess of 20 percent for temporomandibular joint (TMJ) syndrome, status-post jaw surgery, is denied. FINDINGS OF FACT 1. Prior to September 21, 2015, the Veteran’s TMJ manifested in interincisal opening distance between 20 to 30 millimeters. 2. From September 21, 2015, the Veteran’s TMJ did not have physician ordered dietary restrictions to soft and semi-solid foods or full liquid and pureed foods, or a range of 11 to 20 millimeters of maximum unassisted vertical opening. CONCLUSIONS OF LAW 1. Prior to September 21, 2015, the criteria for an initial rating of 20 percent, but no higher, for TMJ, status-post jaw surgery, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.150, Diagnostic Code 9905 (prior to and effective September 10, 2017). 2. From September 21, 2015, the criteria for an initial rating in excess of 20 percent for TMJ, status-post jaw surgery, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.150, Diagnostic Code 9905 (prior to and effective September 10, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO granted service connection with an initial rating of 10 percent, effective January 5, 2012. In July 2014, the Veteran filed a notice of disagreement in regard to the initial rating. In September 2018, the Board remanded the claim for a VA examination. In a September 2020 supplemental statement of the case and rating decision, the RO increased the rating for his TMJ to 20 percent, effective September 21, 2015. On review, the Board finds substantial compliance with its November 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The claim returns to the Board for further appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Laws and Analysis The Veteran’s TMJ disorder is rated under 38 C.F.R. § 4.150, DC 9905 as limited motion of the temporomandibular articulation. During the claim period in this case, the rating criteria under DC 9905 were amended, effective September 10, 2017. 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 an appeal, the Board should first determine which version of the law or regulation is more favorable to the Veteran. If the application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110 (g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3-2000 (April 10, 2000). A new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under DC 9905 prior to September 10, 2017, for limited of motion of temporomandibular articulation: interincisal range of 0 to 10 millimeters warrants a 40 percent rating; 11 to 20 millimeters warrants 30 percent; 20 to 30 millimeters warrants 20 percent; and 31 to 40 millimeters warrants 10 percent. Range of lateral excursion of 0 to 4 mm warrants a 10 percent rating. Under the revised version of DC 9905, limitation of the interincisal range is rated as follows: a range of 30 to 34 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods warrants a 10 percent rating, with dietary restrictions to soft and semi-solid foods warrants a 20 percent rating, and with dietary restrictions to full liquid and pureed foods warrants a 30 percent rating; a range of 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods warrants a 20 percent rating, with dietary restrictions to soft and semi-solid foods warrants a 30 percent rating, and with dietary restrictions to full liquid and pureed foods warrants a 40 percent rating; a range of 11 to 20 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods warrants a 30 percent rating, and with dietary restrictions to mechanically altered foods warrants a 40 percent rating; and a range of 0 to 10 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods warrants a 40 percent rating, and with dietary restrictions to all mechanically altered foods warrants a 50 percent rating. Also, a lateral excursion range of motion of 0 to 4 mm warrants a 10 percent rating. 38 C.F.R. § 4.150, DC 9905 (effective September 10, 2017). Under both the old and revised versions of DC 9905, ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, DC 9905, Note (1) (2008, 2019). Moreover, 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, Note (3) (effective since September 10, 2017). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). 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.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses.  See Layno, 6 Vet. App. at 469.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F.3d 1372, 1377.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that his TMJ disability warrants a 20 percent rating. See July 2014 Notice of Disagreement. In light of the evidence, the Board finds that for the entirety of the rating period on appeal, or from January 2012, a 20 percent rating, but no higher, is warranted. Turning to the evidence, the Veteran was seen at a VA facility for mouth pain in May 2012 which noted he had been having problems with mouth pain and poor bite. See May 2012 VA Treatment Record. The Veteran was provided a VA compensation examination in June 2012 to determine the nature and etiology of his jaw disability. The Veteran reported his TMJ had slowly gotten worse, he was unable to eat foods like lettuce and tomatoes due to jaw pain, he hears popping in his jaw and had radiating pain. He further reported flare ups made it hard to taste his food and he did not eat much because of the pain. On examination, lateral excursion was 4 millimeters, and interincisal distance was 31-40 millimeters with objective evidence of painful motion at 21-30 millimeters, with localized tenderness or pain on palpation and crepitus. Repetitive use testing revealed the same. The examiner noted additional functional loss with less movement than normal, weakened movement, excess fatiguability, incoordination, pain on movement, deformity. See June 2012 VA Examination and Report. The Veteran was seen in May 2013 with complaints of issues yawning, chewing, and speaking, and reported the pain was daily. See May 2013 VA Treatment Record. The VA physician provided a narrative report of the Veteran’s care, including noting his ongoing issues with his mouth including pain with opening or using his mouth, and that the pain impacts activities of daily living. See May 2013 VA Physician Narrative Report. In a September 2014 VA treatment record, the Veteran reported pain upon opening his mouth and limited opening. The VA physician noted crepitus and pain to manipulation, bilaterally. See September 2014 VA Treatment Record. In 2015, the Veteran had surgery on his mouth in May and August. The procedure in May was to correct the relapse of his previous orthognathic surgery and to treat the significant apertognathia. See May 2015 Surgery Operative Note. In August, the Veteran had surgery to remove four teeth in addition to the implanted plates and hardware. See August 2015 Surgery Operative Note. The Veteran submitted a statement by T.B., oral and maxillofacial surgeon dated in September 2015. Dr. T.B. noted that the Veteran’s maximum incisal opening would appear to be 35 mm. However, when consideration was given to the fact that his anterior bite is 6mm, his true maximum incisal opening was less than 30 mm. In June 2019, the Veteran was afforded a VA compensation examination to evaluate the severity of his TMJ. The Veteran reported numbness of his face and pain along the jawline, gums, and under his nose. He reported biting his tongue, decreased taste, altered speech, and limitations with eating and opening his mouth. Further, he reported chewing difficulty requiring him to eat chopped foods and that he eats on one side of his mouth due to the disability. On examination, interincisal distance was 30-34 millimeters; right and left lateral excursion was greater than 4 millimeters with pain noted on examination which caused functional loss, with evidence of pain with chewing, localized tenderness on palpation, and objective evidence of crepitus, bilaterally. After 3 repetitions interincisal distance measured 21-29 millimeters. Pain and weakness were found after repetitive use over time, with 0-4 millimeter right and left lateral excursion and interincisal distance 21-29 millimeters, with flare ups estimated to be the same. There was no objective evidence of pain on non-weight bearing and passive range of motion was the same as active. The examiner indicated additional functional loss with less movement than normal and weakened movement with visible pain and range of motion limitations. The examiner indicated the Veteran was not required to eat mechanically altered foods. The examiner found that there was paresthesia of the inferior alveolar nerve due to his TMJ surgery. See June 2019 VA Examination and Report. The Board finds that an initial rating of 20 percent, but no higher, for the entirety of the initial rating period on appeal is approximated under the old and current regulation. The Board notes that in a September 2020 rating decision, the Veteran was awarded separate service connection for paresthesia of the inferior alveolar nerves as secondary to his service-connected TMJ. The initial VA compensation examination found that the Veteran’s interincisal opening distance was 30-40 millimeters, which, under the rating criteria at the time, approximated a 10 percent rating. However, the Board notes that the examiner indicated that the Veteran’s pain started at 21-30 millimeters, which warrants a 20 percent rating under the pre-September 2017 criteria. The limitation of the Veteran’s opening was also noted in several VA treatment records, stating that he had issues with opening his mouth. See e.g. May 2013 VA Physician Narrative Report. As such, the Board finds that the evidence for the period on appeal prior to September 21, 2015, approximated a 20 percent rating. Further, a rating in excess of 20 percent is not approximated for the entirety of the rating period on appeal under the pre- or post-September 2017 regulations. Under the criteria for the pre-September 2017, there is no evidence that the Veteran’s interincisal opening distance was restricted to between 11–20 millimeters. Under the post-September 2017 regulations, while the Veteran stated that he had trouble with foods like lettuce and tomatoes, absent are physician ordered dietary restrictions to soft and semi-solid foods or full liquid and pureed foods, nor is there evidence of a range of 11 to 20 millimeters of maximum unassisted vertical opening. The Board acknowledges the September 2015 statement by Dr. T.B., which indicated that his true maximum incisal opening was less than 30 millimeters. However, there is no evidence of record, including in Dr. T.B.’s statement, that the Veteran’s range is less than 20 millimeters. The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App.  447 (2009) has been raised.  Here however, the Veteran’s VA treatment records indicate that he was gainfully employed.  The Board, therefore, finds that Rice is inapplicable, and a TDIU request has not been inferred. As such, in light of the evidence, the Board finds that for the entirety of the rating period on appeal, a 20 percent rating, but no higher, for the Veteran’s TMJ disability is warranted.    S. Merrick Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.