Citation Nr: 21042064 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-36 341 DATE: July 11, 2021 ORDER 1. Entitlement to a rating in excess of 40 percent for a temporomandibular joint disorder (TMJ) is denied. REMANDED 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to service connection for a right upper extremity neurological disability is remanded. 4. Entitlement to service connection for cold injury residuals of the feet is remanded. FINDINGS OF FACT 1. Prior to September 10, 2017, the Veteran's TMJ was manifested by (estimated) inter-incisal distance of 2 millimeters (mm) during flare-ups; his TMJ has been rated 40 percent (the maximum schedular rating for this period); symptoms or impairment not encompassed by the schedular criteria are not shown, or alleged. 2. From September 10, 2017, the Veteran's TMJ has been manifested by (estimated) inter-incisal distance of 0-10 mm following repeated use over time and during flare-ups, but dietary restriction to only mechanically altered foods is not shown. CONCLUSION OF LAW A rating in excess of 40 percent for the Veteran's TMJ is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.150, Diagnostic Code (Code) 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from July 1987 to December 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2014 Department of Veterans Affairs (VA) rating decision. An August 2019 Board decision remanded the matters for additional development. [The August 2019 Board decision denied service connection for right leg, left leg, right leg shin splint, left leg shin splints, left hamstring, and bilateral hearing loss disabilities; denied a rating in excess of 20 percent a right ankle disability; denied a rating in excess of 20 percent for a left ankle disability with achilles tendonitis; denied an effective date prior to February 24, 2014, for the award of service connection for TMJ; and denied finding clear and unmistakable error (CUE) in a September 9, 2008 rating decision pertaining to service connection for major dental repair. The decision reopened claims seeking service connection for headaches, bilateral athlete's foot, right and left foot disabilities, and right and left knee disabilities (and denied the knee claims on de novo review). Finally, that decision remanded claims seeking a rating in excess of 20 percent for TMJ, and service connection for right upper extremity radiculopathy, cold injury residuals of the feet (on de novo review), right and left foot disabilities (on de novo review), headaches (on de novo review), and bilateral athlete's foot (on de novo review). A July 2020 rating decision increased the rating for TMJ from 20 to 40 percent throughout; granted service connection for bilateral pes planus with plantar fasciitis and heel spurs; granted service connection for bilateral tinea pedis (athlete's foot); and, granted service connection for (separately rated) right and left foot hallux valgus. Accordingly, the matters of service connection for bilateral foot disabilities and bilateral tinea pedis are no longer before the Board.] 1. Entitlement to a rating in excess of 40 percent for TMJ is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of "staged" ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's TMJ has been assigned a 40 percent rating throughout under Code 9905. [As the August 2019 Board decision denied an effective date prior to February 24, 2014, for the award of service connection for TMJ, the period for consideration begins on February 24, 2014.] The criteria for rating dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective September 10, 2017, and the updated schedular criteria are applicable as of that date. See 82 Fed. Reg. 36080 (August 3, 2017). Under the prior schedular criteria in Code 9905, limitation of motion of the TMJ warrants a (maximum) 40 percent rating when inter-incisal range is limited from 0 to 10 mm. 38 C.F.R. § 4.150 (2016). [A note provides that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion.] Under the updated schedular criteria, a 40 percent rating is warranted for inter-incisal range of 11 to 20 mm of maximum unassisted vertical opening, with dietary restrictions to all mechanically altered foods; or for inter-incisal range of 0 to 10 mm of maximum unassisted vertical opening, without dietary restrictions to only mechanically altered foods. A 50 percent (maximum schedular) rating is warranted for inter-incisal range of 0 to 10 mm of maximum unassisted vertical opening, with dietary restrictions to only mechanically altered foods. A 10 percent rating is warranted for a range of lateral excursion of 0 to 4 mm. 38 C.F.R. § 4.150. [Notes to the updated criteria state that ratings for limited inter-incisal 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 mm. 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. Id.] Because the regulation changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's TMJ disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also 38 U.S.C. § 5110(g). Factual Background A January 2014 private treatment record notes complaints of jaw "popping and sometimes locks." The assessment was TMJ with "sounds" when opening and closing the jaw. A March 2014 VA treatment record notes the Veteran's report of TMJ locking and popping. On December 2014 VA TMJ examination, the Veteran reported pain and soreness in jaw muscles on waking up, rated 4-5/10. He reported that when his jaw locks the pain level is 9-10/10. He reported flare-ups on waking and chewing that manifest in loss of range of motion (ROM). On objective examination, initial ROM testing showed left lateral excursion was 4 mm and right lateral excursion was 3 mm; inter-incisal distance was 30 mm. There was objective pain with mastication (chewing) and evidence of tenderness or pain on palpation to the joint. The TMJ was more pronounced on the right. On observed repetitive use testing, left lateral excursion was 4 mm and right lateral excursion was 3 mm; inter-incisal distance was 25 mm. On repeated use over time, left lateral excursion was 3 mm and right lateral excursion was 1 mm; inter-incisal distance was 3 mm. Although not conducted during a flare-up, the examiner acknowledged the Veteran's reports (including of pain and fatigue) and opined that left lateral excursion would be 0 mm, right lateral excursion would be 1 mm, and inter-incisal distance would be 2 mm. The examiner opined that the Veteran's TMJ does not impact on his ability to work. He labeled it as "moderate," caused by clinching and bruxing. In his January 2015 Notice of Disagreement (NOD), the Veteran requested a 50 percent rating based on TMJ "with limitation of motion with an inter-incisal range of 11 to 20 m[m]." On January 2020 VA (fee basis) temporomandibular disorders examination, the Veteran reported pain and tenderness in the jaw and both temporomandibular joints, with pain and difficulty chewing. He also reported that when yawning or chewing, facial pain and locking make it difficult to open or close his mouth. He reported treatment with over-the-counter Tylenol and heat pads. On objective examination, initial ROM testing showed left lateral excursion was 0-4 mm and right lateral excursion was 0-4 mm; inter-incisal distance was 0-10 mm. There was evidence of pain on both sides with mouth opening and with masticating. The Veteran did not perform repetitive use testing due to fear of pain. Based on the Veteran's descriptions, the examiner opined that following repeated use over time and during flare-ups, the ROM would be left lateral excursion 0-4 mm, right lateral excursion 0-4 mm, and inter-incisal distance 0-10 mm. It was noted that the Veteran does not require a diet restricted to mechanically altered foods. The examiner opined that the Veteran's TMJ does not impact his ability to work. Analysis Upon longitudinal review of the evidence, the Board finds that a rating in excess of 40 percent is not warranted at any time. Initially, the Board acknowledges that the Veteran is competent to provide evidence about his disability; for example, he is competent to describe symptoms related to his TMJ such as pain, popping, and locking. However, he is not competent to identify a specific level of disability according to the appropriate Code. While lay persons are competent to provide opinions on some medical issues, determining the severity of a complex condition such as TMJ syndrome falls outside the realm of common knowledge of a lay person (it requires medical expertise, informed by diagnostic studies). To the extent he contends that his TMJ warrants a 50 percent rating based on limitation of motion with an inter-incisal range of 11 to 20 mm (see January 2015 NOD), the Board notes that such limitation warrants only a 30 percent rating under the prior (old) schedular criteria; such limitation of motion warrants only a 30 percent rating under the update (new) schedular criteria (without dietary restrictions to only mechanically altered foods) and a 40 percent rating with dietary restrictions to all mechanically altered foods. Accordingly, that argument is without legal merit under both the old and new schedular criteria. For the period prior to September 10, 2017, the old criteria are for consideration. The currently assigned 40 percent rating now assigned is the maximum schedular rating for such disability. On December 2014 examination, the examiner acknowledged the Veteran's reports of flare-ups (including of pain and fatigue) and opined that during flare-ups the inter-incisal distance would be 2 mm. The 40 percent rating assigned is consistent with the (maximum) rating warranted when inter-incisal range is limited from 0 to 10 mm. His TMJ is not shown (or alleged) to have manifestations or cause impairment not encompassed by the schedular criteria, and referral for extraschedular consideration is not warranted. Turning to the period from September 10, 2017, the Board notes that application of the old criteria does not allow for a rating in excess of 40 percent, and therefore does not permit a higher schedular rating (as discussed above). Under the updated (new) schedular criteria, a 50 percent (maximum schedular) rating is warranted for inter-incisal range of 0 to 10 mm of maximum unassisted vertical opening with dietary restrictions to only mechanically altered foods. The emphasis on "with" is added because that is the distinction between the criteria for the 40 and 50 percent schedular ratings. [Again, the notes to the updated criteria stipulate that ratings for limited inter-incisal movement may not be combined with ratings for limited lateral excursion.] The evidence does not show dietary restrictions limited to only mechanically altered foods. Significantly (considering Note 3 to Code 9905 indicating that dietary restrictions to only mechanically altered food must be verified by a physician), the January 2020 examiner indicated that the Veteran does not require a mechanically altered foods diet. Accordingly, a rating in excess of 40 percent is not warranted under the updated criteria. Finally, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the record in the context of the instant claim for increase. The Veteran does not contend, nor has an examiner opined, that his TMJ renders him unemployable. Examination reports and treatment records show that he has maintained substantially gainful employment throughout the appeal period. The preponderance of the evidence is against this claim. The benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Entitlement to service connection for headaches The Board remanded this matter in August 2019 for additional development of the medical evidence to ascertain the nature of the Veteran's claimed headache disability, including whether his headaches are a separate headache disorder or are a symptom of a diagnosed disability (such as his service-connected TMJ or non-service-connected sinusitis). On January 2020 VA (fee basis) headaches examination, the Veteran reported onset of his headaches in service following diagnoses of sinusitis and TMJ. The examiner diagnosed headaches and provided a negative nexus (to service) opinion. She also wrote that the "headaches in [claims file] were associated with sinusitis and TMJ. A nexus has not been established." That opinion is not adequate, as it lacks adequate rationale and is facially inconsistent; however, it does suggest that the headaches are related to the Veteran's sinusitis and/or TMJ (albeit without adequate explanation of the nature of the relationship). In October 2020, another VA (fee basis) examiner reviewed the record and opined that the Veteran's headaches are not proximately due to, the result of, or aggravated by his service-connected TMJ. She explained "There is no evidence in the [claims] file of a chronic headache disorder." She noted complaints in 2004 and 2006 but "no evidence of headaches since 2006, therefore no evidence of aggravation." The Board finds this opinion also inadequate for rating purposes, as it is based on an incomplete/inaccurate factual premise. Review of the record shows the Veteran reported headaches several times during the appeal period, including on December 2014 VA sleep apnea examination (described as headaches during the day), on June 2015 treatment (described as "once or twice a day a light pressure headache"), and on January 2020 treatment ( "frequent [headache] constant ache"). Considering the conflicting and inadequate medical evidence in the record, remand for an examination to obtain an adequate advisory medical opinion regarding the nature and likely etiology of the Veteran's claimed headaches is necessary. 3. Entitlement to service connection for a right upper extremity neurological disability The Veteran seeks service connection for a right upper extremity nerve disability, claimed as secondary to a nonservice-connected right wrist disability. See July 2014 statement; see also September 2008 rating decision. In August 2019, the Board remanded the matter for an examination to ascertain whether the Veteran has a current right upper extremity nerve disability, and if so, whether such is related to his service. On January 2020 VA (fee basis) central nervous system (CNS) and neuromuscular diseases examination, the examiner concluded there is "no diagnosis or diagnostic exam supporting any CNS problems in the [Veteran's] medical record." She wrote that she was "Unable to fully access the CNS condition on the day of the exam and was unable to render a diagnosis, therefore a nexus cannot be established." On November 2020 VA (fee basis) examination, the examiner wrote that the Veteran did "not have complaints of radiculopathy of the right upper extremity on today's exam" and found there was no diagnosis because "objective exam is normal." She provided a negative nexus (to service) opinion because, in part, the "c-file is silent for ongoing treatment for radiculopathy of the right upper extremity." The Board finds the above opinions inadequate for rating purposes, as they are based on an incomplete/inaccurate factual premise. Review of the medical record shows that the Veteran has complained of right upper extremity symptoms during the appeal period. For example, a March 2015 VA treatment record notes complaints of some neuropathic symptoms going down the arms bilaterally, and a January 2020 VA treatment record notes complaints of "arms tingling and burning." Neither examiner addressed the complaints noted in the Veteran's treatment records, and neither cited to any studies that excluded a diagnosis of a peripheral nerve disability. Notably, pain may, in the absence of a diagnosis or underlying pathology, be considered a current disability under 38 U.S.C. §§ 1110, 1131 if it results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As the record does not include an adequate examination and opinion regarding the nature and etiology of the Veteran's claimed right upper extremity nerve disability, remand for an examination to ascertain the nature and likely etiology of the Veteran's claimed right upper extremity nerve disability is necessary. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 4. Entitlement to service connection for cold injury residuals of the feet The Veteran seeks service connection for "cold weather condition to the feet to include diagnosed chronic athlete feet condition." See July 2014 statement. [The Veteran subsequently established service connection for bilateral athlete's foot. See July 2020 rating decision.] In August 2019, the Board remanded the matter for an examination to ascertain whether the Veteran has cold injury residuals, and if so, whether such are related to his service. On January 2020 VA (fee basis) examination, the examiner provided a negative nexus (to service) opinion, explaining that the claims file does not contain evidence of treatment for cold weather injury of the feet and that "There is no evidence in the medical record to support cold injury to the feet." The Board finds this opinion inadequate for rating purposes, as the Veteran's service treatment records (STRs) contain a September 1989 complaint of foot pain and cold symptoms (assessed as athlete's foot). On November 2020 VA (fee basis) cold injury residuals examination, it was noted that current symptoms include cold feet, cracking skin, and bilateral foot numbness and cold sensitivity. The examiner provided a negative nexus (to service) opinion, explaining "There is no evidence of chronicity of care and symptoms are subjective only. A nexus has not been established." The Board finds this examination report and opinion inadequate for rating purposes as it is inconsistent; the report indicates the Veteran's current symptoms include cracking skin, but also indicates that his symptoms are "subjective only" (a noted symptom of cracking skin suggests an objective finding of such) Furthermore, the opinion lacks adequate rationale, as a lack of chronicity of care, while a relevant factor, cannot be the sole basis for a finding of a lack of nexus. Finally, the opinion fails to address whether the Veteran's subjective symptoms, in the absence of a diagnosis or underlying pathology, result in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As the record does not include an adequate examination and opinion regarding the nature and etiology of the Veteran's claimed cold injury residuals, remand for an examination and opinion addressing those medical questions is necessary. See Dalton, 21 Vet. App. at 39 (2007); see also Barr, 21 Vet. App. at 312. The matters are REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) clinical records of all VA evaluations or treatment the Veteran has received for his claimed headaches, right upper extremity neurological disability, and cold injury residuals of the feet. 2. Arrange for a neurological examination of the Veteran to ascertain the nature and likely etiology of his claimed headache disability. The Veteran's entire record (including this Remand) must be reviewed by the examiner in conjunction with the examination, and any tests or studies indicated must be completed. On examination and interview of the Veteran and review of his record, the examiner should: (a) Identify (by diagnosis) each headache disability entity found or shown by the record during the pendency of this claim. Specifically opine whether such is/are solely a symptom/manifestation of his service connected TMJ, or his non-service-connected sinusitis. (b) If a headache disability (not solely a symptom/manifestation of the Veteran's service-connected TMJ or nonservice-connected sinusitis) is diagnosed, identify the likely etiology for such disability. Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related directly to the Veteran's active service? (c) If the response to (b) is No, is it at least as likely as not that it was caused or aggravated by the Veteran's service-connected TMJ? [The opinion must address aggravation.] (d) If a diagnosed headache disability is found to not have been caused, but to have been aggravated by the Veteran's TMJ, identify the baseline severity of such disability existing prior to the aggravation and the level of severity of the disability following aggravation. The examiner must include rationale with all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. [If an opinion sought cannot be provided without resort to speculation, it must be so stated for the record, with explanation why that is so.] 3. Arrange for a neurological examination of the Veteran to confirm whether he has a nerve condition of the right upper extremity and, if so, determine the likely etiology of such disability. The Veteran's entire record (including this Remand) must be reviewed by the examiner in conjunction with the examination, and any tests or studies indicated (to confirm a peripheral nerve disability) must be completed. On examination and interview of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a) Does the Veteran have a right upper extremity nerve condition? If so, identify the nature of the disability and nerves involved (as well as the anatomical locations of related symptoms). If a right upper extremity nerve disability is not diagnosed, reconcile such finding with the complaints of arm tingling, numbness, and pain noted in the Veteran's treatment records (cited above). [The examiner should note (the rationale should address) that pain resulting in functional impairment of earning capacity may constitute a compensable disability.] (b) Identify the likely etiology for any right upper extremity nerve condition found. Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran's service? (c) If a right upper extremity nerve condition is determined to not have been incurred in service, identify the etiology for the disability that is to be considered more likely (and explain why that is so). The examiner must include rationale with all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. [If an opinion sought cannot be provided without resort to speculation, it must be so stated for the record, with explanation why that is so.] 4. Arrange for a Cold Injury Protocol Examination of the Veteran's feet to assess the nature and likely etiology of his claimed cold injury residuals of the feet. The Veteran's entire record (including this Remand) must be reviewed by the examiner in conjunction with the examination, and any tests or studies indicated must be completed. On examination and interview of the Veteran and review of his record, the examiner should: (a) Identify (by diagnosis) any (and each) left and right cold injury residual foot disability entity found on examination or shown in the record. The rationale provided should acknowledge the November 2020 VA examination notations of cracked skin, cold feet (wearing extra socks), numbness, and cold sensitivity. The examiner should explain (regarding each of those findings) whether it is a cold injury residual (and if not, explain why not). [The examiner should note (the rationale should acknowledge) that pain resulting in functional impairment of earning capacity may constitute a compensable disability.] (b) Regarding each foot cold injury residual disability entity diagnosed, opine further whether it is at least as likely as not (a 50% or greater probability) a residual of a cold injury in service? The rationale must address (discuss the significance of) the September 1989 STR notation of complaints of cold symptoms. (c) If, and only if, a cold injury residual is diagnosed and found to at least as likely as not be related to a cold injury service, to the extent possible, distinguish the symptoms and functional impairment due to the cold injury residual(s) from any symptoms/functional impairment due to the Veteran's multiple other service-connected foot disabilities (bilateral pes planus with plantar fasciitis and heel spurs, bilateral tinea pedis, and bilateral hallux valgus with left achilles tendonitis). The examiner must include rationale with all opinions, citing to supporting factual data and medical principles/literature, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.