Citation Nr: 22010702 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 19-02 091 DATE: February 24, 2022 ORDER Entitlement to restoration of a 40 percent rating for residuals of left mandible fracture with temporomandibular joint (TMJ) dysfunction is granted. REMANDED Entitlement to an increased rating for residuals of left mandible fracture with TMJ dysfunction, rated 30 percent prior to June 9, 2009, and 40 percent thereafter, is remanded. FINDING OF FACT At the time of the July 2015 reduction for residuals of left mandible fracture with TMJ dysfunction, the evidence of record did not demonstrate a material improvement that would be maintained under the ordinary conditions of life. CONCLUSION OF LAW The criteria for entitlement to restoration of a 40 percent rating for residuals of left mandible fracture with TMJ dysfunction have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to June 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2006 and July 2015 rating decisions of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The increased rating issue was previously before the Board in April 2009. An April 2009 Board Remand directed the AOJ to obtain a VA examination, readjudicate the issue, provide a supplemental statement of the case if the appeal was "not granted to the Veteran's satisfaction," and return the issue to the Board. In an August 2009 rating decision, the AOJ granted an increased 40 percent rating, effective June 9, 2009. The AOJ classified this as a total grant of the benefits sought, despite only granting the 40 percent rating for a portion of the period on appeal. The matter was not returned to the Board. Accordingly, the increased-rating issue remains on appeal. The Veteran testified at a March 2009 hearing and a December 2021 hearing. The Veterans Law Judge (VLJ) who presided at the March 2009 hearing is unavailable to consider the matter. Although the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal (see 38 U.S.C. § 7102; 38 C.F.R. § 20.604), the Board finds that the VLJ's unavailability is harmless error because another hearing has been held with the undersigned VLJ. The decision and remand are being rendered prior to the association of a hearing transcript with the claims file. The Veteran is not prejudiced because the decision is favorable and no final or adverse action is being taken for the remanded issue at this time. A transcript will be produced and added to the claims file at a later date. When determining whether a reduction was proper, there are two sequential inquiries that must be addressed. First, the Board must ascertain whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. Here, the due process requirements are met. Reduction was proposed in a March 2014 decision, and the Veteran was properly notified. The Veteran did not request a hearing within 30 days of such, and in a July 2015 rating decision, more than 60 days after the notice of proposed reduction, the evaluation for TMJ was reduced from 40 percent to 20 percent, effective October 1, 2015, the first day of the month 60 days after the July 2015 decision. If the procedural requirements are met, a second, substantive inquiry concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. The Board finds that the substantive requirements have not been met and the reduction was accordingly inappropriate. Regulations "impose a clear requirement that VA rating reductions . . . be based upon a review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 421. The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 420. The Board finds that the reduction is void because the provisions of 38 C.F.R. § 3.344 were not met. Specifically, the Board finds that the record has not demonstrated material improvement that will be maintained under the ordinary conditions of life. The June 2009 VA examination on which the 40 percent rating was based reported that Veteran experienced "pain in right and left temporal regions, masseteric areas, as well as clicking and popping of the [TMJ]. He has inability to chew food stuffs . . . the [Veteran] has very little motion of the jaw, approximately 18 mm upon extreme opening." The VA examination described the Veteran's TMJ case as "a severe" case while also listing the degree of severity as "moderate to severe." A January 2013 VA examination documented the Veteran's mouth range of motion as 31 to 40 millimeters but noted that objective painful motion began between zero to 10 millimeters. The January 2013 VA examination remarked that the Veteran had "significant tmj disorder with crepitus bilaterally indicating bilateral meniscus destruction" and diagnosed "severe tmj disease with masticatory implications of decreased ability to eat most foodstuffs." In a March 2014 VA examination, the Veteran reported flare ups of "pain, fatigue and limitation of ROM [range of motion]." The examiner reported flare ups of increased limitation with repeated usage. However, the March 2014 VA examination listed the range of motion as no worse than 31 to 40 millimeters with no objective evidence of painful motion; the examination classified the condition as "moderate tmj disease . . . with pain and fatigue with flair-ups [sic] and continual usage." The findings do not appear to account for the actual degree of functional impairment described by the Veteran with everyday use. The Veteran has testified that his TMJ syndrome has not actually improved, and stressed the pain with repeated use was constant for the period of 2013 to 2015. He especially noted the pain with repeated use or crunchy foods. Such is consistent with the examination findings. The Board has considered this evidence and finds that it does not demonstrate material improvement that will be maintained under the ordinary conditions of life. Accordingly, the rating reduction for residuals of left mandible fracture with TMJ dysfunction from 40 percent to 20 percent was not proper; the 40 percent rating is restored. REASONS FOR REMAND Remand is necessary to obtain a VA examination discussing the current state of the Veteran's disability. The Veteran testified at the December 2021 hearing that his condition had worsened, and described a need to mechanically alter food. Thus, VA should provide a VA examination on remand. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of left mandible fracture with TMJ dysfunction. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the clinician should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). 2. Then, readjudicate the claim, to include both periods of evaluation. If the benefit sought remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.