Citation Nr: 21030666 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-33 047 DATE: May 19, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral anterior displaced disc (TMJ) is denied. FINDING OF FACT The Veteran's TMJ has not been characterized by an interincisal range of 21 to 30 mm (under the previous criteria), or 21 to 29 mm with a diet restricted to soft and semi-soft foods. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for bilateral anterior displaced disc (TMJ) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.150, Diagnostic Code (DC) 5003-9905. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1992 to May 2012. In January 2019, the Veteran's claim was remanded by the Board. At that time, the Board determined that relevant evidence had not been considered in the first instance by the Agency of Original Jurisdiction (AOJ). In October 2019, the Veteran's TMJ claim was remanded once again. The Board found that while the Veteran had been afforded VA examinations in February 2015 and October 2018, a remand was required in order to comply with recent United States Court of Appeals for Veterans Claims (Court) precedent. At the outset, the Board notes that the AOJ has determined that the Veteran is entitled to an earlier effective date for the 10 percent evaluation assigned to his TMJ as of December 12, 2014, the date of his request to reopen his claim. See December 2020 Rating Decision. As such, the Veteran's claim for an increased rating for TMJ has been recharacterized as entitlement to an initial rating in excess of 10 percent. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial rating in excess of 10 percent for bilateral anterior displaced disc (TMJ) The Veteran contends that he should be awarded a higher rating for his TMJ. Throughout the period on appeal, the Veteran's TMJ has been rated under Diagnostic Code 5003-9905. The schedular rating criteria for dental disabilities were amended, effective September 10, 2017. See 82 Fed. Reg. 36,080 (August 3, 2017). The former criteria may be applied throughout the appeal period, but the amended criteria may be applied only as of September 10, 2017. Prior to September 10, 2017, Diagnostic Code 9905 contemplated a 10 percent disability rating when the range of lateral excursion is limited from 0 to 4 mm. or the inter-incisal range is limited to 31 to 40 mm. A 20 percent disability rating is assigned when the inter-incisal range is limited to 21 to 30 mm. A 30 percent rating is warranted when the inter-incisal range is limited to 11 to 20 mm, and a maximum 40 percent rating is assigned when the range is limited to 0 to 10 mm. A note to Diagnostic Code 9905 states that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150. Effective September 10, 2017, Diagnostic Code 9905 was revised. Under the amended rating criteria, a 10 percent evaluation is assigned when the lateral excursion range of motion is 0 to 4 mm. When there is 30 to 34 mm of maximum unassisted vertical opening, a 10 percent evaluation is contemplated without dietary restrictions to mechanically altered foods, a 20 percent evaluation is assigned when there are dietary restrictions to soft and semi-solid foods, and a 30 percent evaluation is warranted when there are dietary restrictions to full liquid and pureed foods. When there is 21 to 29 mm of maximum unassisted vertical opening, a 20 percent evaluation is contemplated without dietary restrictions to mechanically altered foods, a 30 percent evaluation is assigned with dietary restrictions to soft and semi-solid foods, and a 40 percent evaluation is warranted with dietary restrictions to full liquid and pureed foods. When there is 11 to 20 mm. of maximum unassisted vertical opening, a 30 percent evaluation is assigned without dietary restrictions to mechanically altered foods, and a 40 percent evaluation is warranted for dietary restrictions to all mechanically altered foods. When there is 0 to 10 mm. of maximum unassisted vertical opening, a 40 percent evaluation is contemplated without dietary restrictions to mechanically altered foods, and 50 percent evaluation is warranted for dietary restrictions to all mechanically altered foods. Under the amended rating criteria, Note (1) states that ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Note (2) indicates that, for VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. Note (3) provides that, 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. Private provider Dr. K.M. provided an oral and dental examination dated August 20, 2016. The Veteran was noted to have late articular disc displacement with reduction bilaterally. Range of motion was greater than 4 mm for lateral excursion with painful motion found greater than 4mm. Range of motion for mouth measured by inter-incisal distance showed greater than 40 mm, with pain at greater than 40 mm. There was no additional loss of motion found with repetitive testing. Pain was noted along with clicking or crepitation on both sides of the Veteran's jaw. A review of the Veteran's prior examinations dated September 15, 2012, February 21, 2015, and letter from his private provider, Dr. K.M., show the Veteran reported clicking or locking without pain. Range of motion in all testing, including the recent examination, has remained the same. Range of motion was greater than 4 mm for lateral excursion, range of motion for mouth measured by inter-incisal distance shows greater than 40 mm. There were no objective or subjective complaints of pain to support a higher evaluation prior to the August 20, 2016, examination. At the Veteran's VA examination on October 20, 2018, an examiner found that the Veteran had a diagnosis of left sided degenerative joint disease (moderate), left sided arthralgia of TMJ, right sided articular disc disorder reducing, and sleep related bruxism. The Veteran reported that his left TMJ joint continued to be very painful with more episodes of intermittent pain and locking. He reported that he currently suffered from bilateral painful popping, but the left side was greater than the right. The Veteran admitted to voluntarily clicking his jaw as a nervous habit and doing so when stressed. At the examination, it was noted that the Veteran had an interincisal distance of greater than 34mm. His right and left lateral excursion was greater than 4mm. Pain was noted with mouth opening and with right lateral excursion. Non-painful click noted at 30mm range of motion for the right side and painful click noted around 30-35mm range of motion for the left side. There was evidence of pain with chewing (mastication). The Veteran underwent an additional VA examination in December 2020. The examiner confirmed that the Veteran suffered from bilateral anterior displaced disc with reduction and degenerative joint disease, with a date of diagnosis in 2014. The Veteran described his current symptoms as progressive pain, clicking and locking one to three times per week, lasting five to ten minutes, that unlocked with movement of the jaw back and forth, with the left side greater than the right. The Veteran did not report flare-ups of the temporomandibular joint, nor did he report functional loss or functional impairment. Initial range of motion measurements showed interincisal distance of greater than 34 mm. Right lateral excursion greater than 4 mm with pain noted on examination that did not result in functional loss. The Veteran experienced pain with mouth opening and right lateral excursion. There was evidence of pain with chewing, and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was also objective evidence of crepitus or clicking of joints or soft tissue of the right TMJ. The examiner noted that the pain was severe. Left lateral excursion was greater than 4 mm. There was pain noted on the examination, but it did not result in or cause functional loss. There was evidence of pain with chewing, as well as objective evidence of localized tenderness or pain on palpation of the joint associated soft tissue. There was also objective evidence of crepitus, of moderate severity. The examiner noted that there was no pain at rest. The examiner also noted that passive range of motion for the left and right TMJ was the same as active range of motion. Objective evidence of pain was also the same as active range of motion. Based on the foregoing evidence of record, the Board finds that a higher evaluation is not warranted for the period on appeal. Both prior to and since September 10, 2017, the evidence does not indicate that the Veteran's disability manifested as interincisal range of 21 to 30 mm, warranting a 20 percent rating. As of September 10, 2017, the evidence does not indicate that the Veteran had an interincisal range of 21 to 29 mm which manifested with dietary restrictions to soft and semi-soft foods that would warrant a 20 percent rating. As such, the preponderance of the evidence weighs against finding that the Veteran should be awarded an initial rating in excess of 10 percent for his TMJ. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Vosburgh, 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.