Citation Nr: 21042511 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-41 669 DATE: July 13, 2021 ORDER From February 21, 2017, to May 3, 2018, a 10 percent rating, but not higher, for bilateral hearing loss, is granted. A rating higher than 30 percent for temporomandibular disorder with residuals of fracture of mandible is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, from February 21, 2017, to May 3, 2018, the bilateral hearing loss disability has been manifested by hearing acuity no worse than Level III in the right ear, and Level V in the left ear. 2. The temporomandibular disorder with residuals of fracture of mandible did not manifest by interincisal range of 10 mm or less of maximum unassisted vertical opening and has not required a mechanically altered foods diet at any point during the appeal period. CONCLUSIONS OF LAW 1. From February 21, 2017, to May 3, 2018, the criteria for a 10 percent disability rating for bilateral hearing loss disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100 (2020). 2. The criteria for a rating higher than 30 percent for temporomandibular disorder with residuals of fracture of mandible are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.150, DC 9905 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to November 1976. In August 2018, the Veteran and his spouse testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Most recently, in a May 2021 rating decision, the RO increased the rating for temporomandibular disorder, with residuals of fracture of mandible involving left angle and right body to 30 percent, for the entire rating period on appeal. The appeal has since returned to the Board for further appellate consideration. Increased Rating Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) Bilateral Hearing Loss Rating Criteria Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. Bilateral Hearing Loss Rating Analysis A review of a February 2017 audiogram showed pure tone thresholds, in decibels, as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 59 45 60 65 65 LEFT 60 45 55 70 70 Speech recognition score was 88 percent in the right ear and 72 percent in the left ear. It is not clear whether Maryland CNC was used. Here, applying the February 2017 audiometric results to Table VII, the Veteran had Level III hearing acuity in the right ear, and Level V in the left ear, resulting in a 10 percent rating. Although it is unclear whether the Maryland CNC test was used in 2017, the Board acknowledges the worsening in pure tone threshold, in decibels, in comparison to the 2015 audiogram. Accordingly, the Board resolves all doubt in the Veteran's favor in finding that a 10 percent, but not higher is warranted during this rating period on appeal from February 21, 2017, to May 3, 2018. There are no other audiograms during this rating period on appeal to support the assignment of a rating higher than 10 percent. The Board considered the Veteran's statements that his bilateral hearing loss disability warrants a higher rating. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone are not sufficient to address the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100, with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2). Temporomandibular Disorder with Residuals of Fracture of Mandible Rating Criteria The Veteran's disability is rated under the provisions of 38 C.F.R. § 4.150, DC 9905. During the pendency of this appeal, the applicable rating criteria for 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). The revision does not specify that it was to have a retroactive effect. Accordingly, the Board will consider the pre-September 10, 2017 criteria and the revised criteria and apply the criteria most favorable to the Veteran. However, if an award is warranted under the revised criteria, the award cannot be retroactively effective prior to September 10, 2017. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to September 10, 2017, under DC 9905, for limited motion of temporomandibular articulation, provided a 20 percent rating for interincisal range of 21 to 30 mm, a 30 percent rating for interincisal range of 11 to 20 mm, and a maximum 40 percent rating for interincisal range of 0 to 10 mm. 38 C.F.R. § 4.150, DC 9905. A Note provides that ratings for limited interincisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. Since September 10, 2017, under DC 9905, for temporomandibular disorder, when the interincisal range is 30 to 34 mm of maximum unassisted vertical opening, a 20 percent rating is assigned with dietary restrictions to soft and semi-solid foods; and, a 30 percent rating is assigned with dietary restrictions to full liquid and pureed foods. When the interincisal range is 21 to 29 mm of maximum unassisted vertical opening, a 20 percent rating is assigned without dietary restrictions to mechanically altered foods; a 30 percent rating is assigned with dietary restrictions to soft and semi-solid foods; and, a 40 percent rating is assigned with dietary restrictions to full liquid and pureed foods. When the interincisal range is 11 to 20 mm of maximum unassisted vertical opening, a 30 percent rating is assigned without dietary restrictions to mechanically altered foods; and a 40 percent rating is assigned with dietary restrictions to all mechanically altered foods. When the interincisal range is 0 to 10 mm of maximum unassisted vertical opening, a 40 percent rating is assigned without dietary restrictions to mechanically altered foods; and a 50 percent rating is assigned with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, DC 9905. Per DC 9905, Note (1) states ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Note (2) states, for VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. Note (3) states, 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; and 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. Temporomandibular Disorder with Residuals of Fracture of Mandible Rating Analysis In November 2012, the Veteran underwent a VA oral and dental examination, at which time the examiner confirmed a diagnosis of malunion or nonunion of mandible. The Veteran reported having "clicking and popping" in the joint and having uneven jaws and teeth. Missing teeth were replaced with bridges. The examiner noted that no limitation of motion was observed. The examiner did not fill any other portion of the examination report. In July 2014, the Veteran underwent an additional VA dental and oral conditions examination, at which time the examiner confirmed a diagnosis of malunion or nonunion of mandible. The Veteran reported pain when opening his mouth, difficulty chewing certain foods, and clicking and popping of his joint. This examiner indicated that the Veteran's complaints were related to TMJ and not the fractured mandible. This examiner also failed to complete any other portions of the examination report. According to October 2014 VA treatment records, the Veteran reported having worsening of his jaw pain. There was a little change in position between the closed and open mouth positions on both sides. The reviewing radiologist suggested that this could have been due to the Veteran's inability to open his mouth or that he was uncooperative. In April 2015 correspondence, the Veteran stated that he continued to have pain in his jaw, which worsened throughout the years. He stated that his jaw locked when he ate, and the pain became more intense. In May 2018, the Veteran underwent an oral and dental conditions compensation examination, at which time the examiner confirmed a diagnosis of temporomandibular joint disorder (TMD). The Veteran reported limited movement and pain. He indicated that he wore a night guard for two years, which helped. The examiner did not complete any other portion of the examination report and indicated that the Veteran did not have a diagnosis of oral or dental condition but rather a diagnosis of TMJ. In a separate examination report for TMD, it was further noted that the Veteran reported functional loss, which was described as inability to chew tough items. Upon physical examination, range of motion of the inter-incisal distance was 11 to 20 millimeters. The range of motion itself contributed to functional loss due to limited movement. No pain was noted on examination and there was no pain with chewing. There was also no evidence of localized tenderness/pain on palpation and no objective evidence of crepitus or clicking of the joints. Right and left lateral excursion were 0 to 4 mm after three repetitions. The inter-incisal distance remained 11 to 20 mm after three repetitions. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and that lack of endurance significantly limited functional ability with repeated use over a period of time. The examiner confirmed the same measurements noted above (0 to 4 for lateral excursion and 11 to 20 for inter-incisal distance) after repeated use over time. The examiner further confirmed dietary restrictions to soft and semi-solid foods. During the August 2018 Board hearing, the Veteran testified that due to his jaw condition he could not eat streaks, hard food, and fried food. He stated that the jaw popped and locked regularly. Any food he ate had to be soft. In May 2019, the Veteran underwent an additional VA dental and oral conditions examination, at which time the examiner only noted a diagnosis of malunion or nonunion of mandible. The examiner did not complete any other portion of the examination report other than noting the Veteran's reports of pain in the area and concluding that the condition did not result in lack of motion or instability to chew or work. In March 2021, the Veteran underwent compensation examinations for oral and dental conditions as well as TMD, at which time diagnoses of TMD and residuals of fracture of the mandible, missing teeth, dental caries, and malocclusion were confirmed. The Veteran reported that he was unable to open his mouth wise or eat without pain. He further reported clicking and popping bilaterally when chewing. The examiner indicated that the Veteran had reduction and external fixation due to malunion. There was pain on palpation of the right masseter, temporals, and pterygoid with limited opening of 15 mm (normal 40). The examiner noted that the Veteran had no deviation upon opening but had considerable difficulty opening past 15 mm without pain. Upon manipulation but with pain, the Veteran was able to open 18 to 20 mm but repeatedly opened 15 or 16 mm when prompted with no pain. He had significant difficulty opening the jaw when looking to the side. The TMD examination report confirmed a diagnosis of TMD. The Veteran reported pain with flare-ups. Functional loss was described as inability to chew or open the mouth adequately and inability to bite correctly despite occlusal adjustments. Upon physical examination, range of motion for inter-incisal distance was 11 to 20 mm and lateral excursion was 0 to 4 mm, bilaterally. Range of motion itself contributed to functional loss. Pain noted on examination and contributed to functional loss. Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time/during flare-ups. The examiner noted that the Veteran was examined immediately after repetitive use over time and that the range of motion would still be between 11 to 20 mm under these conditions. The examiner further confirmed dietary restrictions to soft and semi-solid foods. On review, the Board finds that a rating higher than 30 percent is not warranted, as the Veteran's interincisal range has never been limited to 10 mm or less, per his own reports and even when considering DeLuca factors or as a result of repetitive motion and flare-ups, as required for a higher rating under the old and new revised rating criteria. Specifically, all examiners confirmed that the Veteran was able to open closer to 15 or 16 mm, which did not more nearly approximate 10 mm as required by the criteria for a higher rating. Furthermore, while the Board acknowledges that the Veteran reported the inability to eat certain foods, the evidence does not show that a physician has recorded or verified that the Veteran requires a mechanically altered food diet to warrant a higher rating under the revised rating criteria. Accordingly, a rating higher than 30 percent is not warranted. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.