Citation Nr: 21023652 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-56 528 DATE: April 21, 2021 ORDER Prior to August 30, 2017, entitlement to a 10 percent rating, but no higher, for service-connected right zygomatic arch fracture with tempomandibular joint dysfunction (TMJ) is granted. From August 30, 2017, entitlement to a rating in excess of 10 percent rating for service-connected right zygomatic arch fracture with TMJ is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s right zygomatic arch fracture with TMJ has been manifested by lateral excursion of 0 to 4 millimeters and has not manifested in the need for dietary restrictions to soft and semi-solid foods, as recorded or verified by a physician. CONCLUSIONS OF LAW 1. Prior to August 30, 2017, the criteria for a rating of 10 percent, but no higher, for right zygomatic arch fracture with TMJ are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.150, Diagnostic Code 9905. 2. From August 30, 2017, the criteria for a rating in excess of 10 percent for right zygomatic arch fracture with TMJ are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.150, Diagnostic Code 9905. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active military service from February 1962 to February 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified before a Board hearing. A transcript of the hearing is associated with the file. As a way of background, in June 2020 the Board remanded the issue on appeal in order to obtain missing records from Dr. Royer, Dr. Scott Hansen from Central Park Dentistry, and a dentist in Cedar Falls. In June 2020, the Veteran clarified that he only received treatment from Dr. Scott Hansen, and he did not receive any treatment for his teeth/jaw from Dr. Royer and that he has no records from Dr. Royer to support his claim. See June 2020 VA 21-0820 Report of General Information. Records from Dr. Hansen were received. As such, the Board finds that all pertinent medical records have been obtained. Increased Rating 1. Prior to August 30, 2017, entitlement to a 10 percent rating, but no higher, for service-connected right zygomatic arch fracture with TMJ is granted. 2. From August 30, 2017, entitlement to a rating in excess of 10 percent rating for service-connected right zygomatic arch fracture with TMJ is denied. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the pendency of this appeal, VA issued new schedular criteria for rating dental and oral conditions under 38 C.F.R. § 4.150, Diagnostic Code 9905, which became effective September 10, 2017. 82 Fed. Reg. 36,080 (Aug. 3, 2017). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. Prior to the September 10, 2017 amendment, Diagnostic Code 9905 provided a 10 percent rating for interincisal range of 31 to 40 millimeters or a range of lateral excursion of 0 to 4 millimeters. Ratings in excess of 10 percent are warranted when interincisal range is limited to 30 millimeters or less. A note provided that ratings for limited interincisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). Additionally, separate 10 percent ratings for disability in the temporomandibular joint on each side of the jaw cannot be assigned. Vilfranc v. McDonald, 28 Vet. App. 357 (2017). Under the amended version of Diagnostic Code 9905, a 10 percent rating is warranted when range of lateral excursion is limited to between 0 and 4 millimeters, or when interincisal range is limited to 30 to 34 millimeters without dietary restrictions to mechanically altered foods. A higher 20 percent rating is warranted when there is interincisal range of 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods or when there is interincisal range of 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905. Notes to the amended version of Diagnostic Code 9905 state that ratings for limited interincisal movement are not combined with ratings for limited lateral excursion. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 millimeters. 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, Diagnostic Code 9905, Notes (1), (2), and (3). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. As an initial matter, the Veteran filed his claim for an increased rating in August 2013. Based on the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, the Veteran’s rating for right zygomatic arch fracture with TMJ is consistent with a 10 percent rating for the entire appeal period. A review of the records shows that the Veteran was afforded VA examinations in November 2014 and August 2017. In the November 2014 VA examination, the examiner noted that the Veteran does not have a history of difficulty with chewing, opening mouth, and talking. The Veteran denied having a history of swelling or pain. On examination, there was no loss of bone of the maxilla; malunion or nonunion of the maxilla; loss of bone of the mandible; nonunion of the mandible; malunion of the mandible; or loss of bone of the hard palate. There was no evidence of osteoradionecrosis, osteomyelitis, or speech difficulty. No tooth loss was noted due to loss of substance of body of maxilla or mandible. In the August 2017 VA examination, the Veteran endorsed difficulty chewing and clicking in the right TMJ. The Veteran denied having flare-ups of the TMJ. The examiner noted that the Veteran exhibited a right lateral excursion of three millimeters. There was limited excursive movements and pain in the right lateral excursion. There was evidence of pain with chewing. There was objective evidence of localized tenderness or pain on palpation of the joint with associated soft tissue. There was objective evidence of crepitus or clicking of joints upon maximal incisal opening. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner determined that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare ups. In the March 2020 hearing, the Veteran attested that due to his TMJ he cuts his apples in quarters and cut corn off the cob. The Veteran also stated that he prefers to eat steak but as steaks are tougher to chew, he chooses to eat chicken. The Veteran did not state that he mashes, blends, or puree his food. The Veteran attested that his jaw locks up. The Veteran argued that his ten percent rating for his service-connected TMJ should be awarded from August 30, 2013, the date of the claim. A review of the treatment records shows that the Veteran’s symptoms were essentially the same from 2013 forward. In a July 2016 private treatment record, a Panorex x-ray scan was taken of the Veteran’s mouth. See January 2017 Medical Treatment Record – Non-Government Facility. The dentist noted that tooth number 12 was slightly mobile and presented sharp twinges whenever the Veteran ate any firm foods. The dentist further noted that the Veteran’s teeth were essentially sound with normal wear in the posteriors and incisal chipping of the lower and upper anteriores. In a November 2017 VA treatment record, the Veteran reported no symptoms associated with his TMJ. There was no joint dysfunction, no subjective reports of pain, and no tenderness to palpation or locking. See January 2018 CAPRI. In July 2018, October 2018, and September 2019 VA treatment records, the Veteran denied any changes in his diet. See June 2020 CAPRI. In the light most favorable to the Veteran, the Board finds that as the treatment records do not show any significant change in the Veteran’s TMJ throughout the appeal period the Veteran’s TMJ is consistent with a 10 percent rating from the date of the claim. The Board acknowledges the Veteran’s reports of jaw pain, pain when eating, pain when talking, popping in the right TMJ, and not being able to eat hard candy and food. However, even with these subjective reports, the objective evidence throughout the appeal period illustrates that Veteran’s right lateral excursion range of motion is three millimeters. Under the rating criteria in effect prior to the September 10, 2017 amendment, Diagnostic Code 9905 requires inter-incisal jaw movement of 30 millimeters or less for a rating in excess of 10 percent. Under the amended rating criteria, Diagnostic Code 9905 requires inter-incisal jaw movement of 34 millimeters or less for a rating in excess of 10 percent based on interincisal jaw movement. Here, the Veteran exhibited right lateral excursion range of motion of three millimeters throughout the entire appeal period consistent with a 10 percent rating. As such, even with consideration of the Veteran’s reports of pain, popping, and difficulty with chewing, the weight of the evidence is against a finding that the Veteran’s TMJ has been manifested by inter-incisal jaw movement of 34 millimeters or less with dietary restrictions to soft and semi-solid foods. Therefore, the Board finds that a rating in excess of 10 percent is not warranted for any period under the rating criteria effective from September 10, 2017. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.