Citation Nr: 21041394 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-29 716 DATE: July 9, 2021 ORDER Entitlement to an initial rating of 10 percent for vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy and advancements from December 1, 2008 to February 17, 2009, is granted, subject to the laws and regulations governing payment of monetary benefits. REMANDED Entitlement to a rating in excess of 10 percent for vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy and advancements from December 1, 2008, to include residuals such as chronic ear and headaches, is remanded. FINDING OF FACTS From December 1, 2008 and February 17, 2009, the Veteran's maxillary and mandibular condition results in moderate displacement, due to symptoms such as open bite and restricted masticatory function. CONCLUSION OF LAW The criteria for an initial rating of 10 percent from December 1, 2008, to February 17, 2009, for a maxillary and mandibular condition have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9904. REASONS AND BASES FOR FINDING AND CONCLUSIORN The Veteran served on active duty from January 1988 to November 2008. This matter is on appeal from an April 2009 rating decision and was remanded most recently in October 2018. The Veteran testified at a Board hearing in November 2011 with a Veterans Law Judge, who has since retired. The Veteran was notified in an April 2021 letter and was also offered another opportunity to testify at a new hearing. She was to respond within 30 days. As of date, VA has not received any response and the Board may proceed with adjudication. By way of history, the Veteran was granted service connection for a mandibular condition (vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy bilateral sagittal split osteotomy, and anterior horizontal mandibular osteotomy and advancements) by an April 2009 rating decision at a noncompensable rating, with an effective date of December 1, 2008. By a May 2014 rating decision, her rating was increased to 10 percent, effective February 18, 2009. The claim was remanded by the Board in September 2016 and again in August 2017 for additional development. In an April 2018 rating decision, the AOJ granted a separate disability rating of 20 percent for limitation of motion of the temporomandibular joint articulation, effective November 3, 2011, under Diagnostic Code 9905. The Veteran has not appealed this grant. Therefore, this issue is not currently before the Board. The Veteran's mandible disability has historically been rated as noncompensable prior to February 18, 2009, under DC 9999-9904. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned). An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. Id. Effective September 10, 2017, regulations regarding DCs 9904 and 9905 were revised. 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 the administrative or judicial appeal 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, that 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 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. From 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. The VA Schedule for Rating Disabilities does not define the words "mild," "moderate," and "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the U.S. Court of Appeals for Veterans Claims noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms." One possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "mild," as relevant here, as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Id. Note to Diagnostic Code 9905. In a January 2009 statement, the Veteran reported that her teeth have been permanently crooked and were held by braces in attempts to straighten them. Based on a January 2009 VA examination report, the Veteran's condition is considered stable. Her mandibular incisors have shifted and was bonded with lingual arch wire. She reported a history of severe pain in both jaws. She applied warm compresses to alleviate pain. X-rays result showed no decay on radiographs, good bone height, screws, wires, and metal plate visible on Panorex from mandibular BSSO surgery. She underwent a maxillary Lefort I surgery, and genial advancement. Her functional impairment include difficulty chewing stiff foods (mainly meat), and sometimes difficulty opening her mouth. There was no loss of bone of the maxilla or mandible. There was no evidence of malunion or nonunion of the maxilla or mandible. There was no loss of motion at the temporomandibular articulation. There is no loss of bone of the hard palate. There was no evidence of osteoradionecrosis or osteomyelitis. Based on an October 2011 private treatment report from Dr. T.L., the Veteran has Class II Div. I occlusion with anterior overjet and overbite. She has had permanent lingual wire retainer on maxillary anterior and mandibular anterior teeth. Her chief complaints include food getting caught between her teeth, food getting caught between and around permanent bonded lingual retainers on both maxillary and mandibular anterior teeth, pain in her jaws, clicking, popping, and occasional lock jaw. At her November 2011 Board hearing, the Veteran testified to experiencing popping and clicking of her jaw on the regular basis, with pain on the right side, reaching up to the right ear. She reported having headaches with occasional lock jaw. She complained of pain when eating. At times, she would not be able to open her mouth after waking up in the morning. She often used hot compress applications and over the counter medication for pain. Even after her teeth were wired shut, there are gaps between her teeth, which makes her self-conscious. In reviewing the evidence, the Board finds that the Veteran's vertical maxillary excess and mandibular AP deficiency warrants, at a minimum, an initial increased rating of 10 percent from December 1, 2008 to February 17, 2009. In doing so, the Board has only considered the old version of Diagnostic Code 9904 as that was the version applicable during this period of the appeal. Under the old Diagnostic Code 9904, to warrant a compensable rating, the Veteran's condition must show at least a moderate level of displacement of the mandible. In making a determination, the Board is allowed to consider the degree of motion and loss of masticatory function. To warrant a compensable rating, the Veteran must demonstrate that her condition resulted in displacement that causes anterior or posterior, at least to a moderate level. In her January 2009 statement, the Veteran indicated that her teeth have shifted since the injury, requiring permanent braces. She complained of its crookedness despite the braces. At her January 2009 VA examination, she reported severe pain and occasional lock jaw. She reported difficulty chewing stiff foods, mainly with meat. Imaging results showed no decay, loss of bone, or loss of hard palette. The Board finds that under the old version of Diagnostic Code 9904, a compensable rating of at least 10 percent is warranted for the period between December 1, 2008 and February 17, 2009. The Board finds that the Veteran's pain, taken together with her difficulty in chewing food, particularly meat, negatively affects her masticatory function to at least a moderate degree. Given the favorable evidence, the Board finds that a minimum 10 percent initial rating is warranted for the Veteran's mandibular condition under the old version of Diagnostic Code 9904 from December 1, 2008, to February 17, 2009. REASONS FOR REMAND While the Board has determined that the Veteran is entitled to at least a 10 percent rating since the date of her service connection, the Board finds it does not currently have adequate information in the record to determine whether a rating in excess of 10 percent is warranted at any time during the lengthy period on appeal, under either the older or current version of the Diagnostic Code. Moreover, the Board finds that remand is warranted as there has not been substantial compliance with the Board's prior remand directives. In assessing whether an increased rating in excess of 10 percent for the Veteran's TMJ is warranted, the Board finds that the residuals of her TMJ, specifically her complaints of chronic ear pain and headaches, have not been adequately considered. To this point, in October 2018, the Board found that the cosmetic aspects, to include any functional or physical disabilities of the Veteran's TMJ condition, should be addressed. In November 2020, an evaluation was conducted to determine whether the Veteran's service-connected TMJ condition result in headaches. The examining physician, however, concluded that the Veteran did not have chronic headaches and ignored reports of earaches entirely, despite the Veteran's credible and consistent complaints. In addition, another medical opinion was obtained in February 2021 which aimed to address the Veteran's severe facial pain, originating in the condyles, radiating to the ear, head, and jaw. The Veteran was also shown to have arthritis in bilateral condyles. She indicated that she is unhappy with the esthetics post-surgery, complaining of her buck teeth. She was presented with insufficient mandibular advancement that emphasizes her maxillary arch. However, the examiner did not find that the Veteran's condition resulted in malunion or nonunion of the mandible. Her condition has resulted in constant pain and an inability to chew her food. Her mandibular range of motion is also restricted. She reported flareups the TMJ, which restricts her ability to talk or chew foods, due to pain. She indicated that she can barely open her mouth without pain. Her range of motion revealed an inter-incisal distance of 0-10mm, with right and left lateral excursion greater than 4mm. Her diet has been changed to only soft foods, due to limited opening and pain. Pain was noted on examination on rest/non-movement. There was evidence of pain with chewing, and localized tenderness of the joint. However, there was no objective evidence of crepitus or clicking. The Veteran was able to perform repetitive use testing with at least three repetitions, resulting in additional functional loss or range of motion due to pain, fatigue, and weakness. Both left and right lateral excursion were greater than 4mm. Her inter-incisal distance after 3 repetitions were to 11-20mm. The examiner found that the Veteran's pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. However, her pain, weakness, fatigability, or incoordination does, in fact, significantly limit functional ability with flare ups due to pain, fatigue, and weakness. In his final remarks, the examining physician emphasized that the Veteran's inter-incisal opening is greatly restrictive (limited opening). This changes the foods that she eats and is only allowed softer foods in small bites. Large sandwiches, hard, and chewy foods are not eaten. Her diet is now limited to only soft foods. In a February 2021 statement, the Veteran argued that her condition is more severe than what her current ratings reflect. She clarified that she did not tell the VA physician that she was unhappy about the appearance of her teeth. Rather, she was upset with the worsening pain since the assault and the subsequent surgery. The Veteran suggests that the February 2021 examination was inadequate as the examiner spent a very short amount of time evaluating her condition. Additionally, she has been experiencing an increase in anxiety whenever she undergoes an examination. The pain radiates in her jaw and face daily. The stiffness is temporarily relieved after a hot shower, which would allow her to eat breakfast. She often uses a heating bag at night to alleviate higher levels of pain. She is on soft diets due to the difficulties of chewing. She also experiences headaches and earaches caused by her jaw pain. Thus, the Board finds the November 2020 examination report inadequate as it ignores the Veteran's credible and competent statements about headaches and it did not address her complaints of earaches. Moreover, given the concerns raised in the Veteran's February 2021 statement about the February 2021 examination, a remand is warranted to afford the Veteran a new examination. Finally, the Board notes that the Veteran has also indicated that she has also developed anxiety. See February 23, 2021 Statement. The Board does not currently have jurisdiction over such matter and may not adjudicate a service connection claim for a psychiatric disorder, to include anxiety secondary to service-connected TMJ. The Veteran is encouraged to file a new claim with the AOJ to determine whether service connection may be warranted. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records pertaining to the Veteran's service-connected vertical maxillary excess and mandibular AP deficiency, status post Le Fort I osteotomy, bilateral sagittal split osteotomy, and advancements. 2. Schedule the Veteran for a new VA examination by an appropriate specialist to ascertain the current severity of her service-connected TMJ condition. The claims file must be made available to and pertinent documents therein be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire should be utilized. The examiner must provide a detailed description of any cosmetic aspects (residuals) of the Veteran's jaw surgery. The examiner must also describe any other residuals other than TMJ pain, including earaches and headaches. In doing so, the examiner must consider and address the following: (a.) May 2018 Correspondence describing increased intensity and frequency of her headaches. (b.) An August 2019 Disability Benefits Questionnaire noting that the Veteran has been having extreme pain in the maxilla and mandible post-surgical procedure with periodic TMJ pain and headache occurring. (c.) The Veteran's February 2021 statement describing earaches and chronic headaches. (d.) Statements by the Veteran that her headaches began right after her jaw surgery in 1993; that she described her headaches as a stabbing sensation, with nausea and sensitivity to light. See November 2020 Headaches Disability Benefits Questionnaire. (e.) Notation of severe facial pain originating in the condyles and radiating into ear, head, and jaws. See February 2021 TMD Disability Benefits Questionnaire. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.