Citation Nr: 23041206 Decision Date: 07/27/23 Archive Date: 07/27/23 DOCKET NO. 14-10 027 DATE: July 27, 2023 ORDER Entitlement to a 10 percent rating, but no higher, for fracture of the alveolar bone (maxilla) and splintering of the buccal plate before November 5, 2018, is granted. Entitlement to a 50 percent rating, but no higher, for fracture of the alveolar bone (maxilla) and splintering of the buccal plate is granted since November 5, 2018. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) before November 8, 2018, is remanded. FINDINGS OF FACT Before November 5, 2018, the Veteran's fracture of the alveolar bone (maxilla) and splintering of the buccal plate manifested painful motion during flareups most nearly approximating a range of lateral excursion from 0 to 4 millimeters or an interincisal range from 31 to 40 millimeters; interincisal range from 21 to 30 millimeters or less is not shown. From November 5, 2018, the Veteran's fracture of the alveolar bone (maxilla) and splintering of the buccal plate has manifested a range of 0 to 10 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods. CONCLUSIONS OF LAW Before November 5, 2018, the criteria for a 10 percent rating but no higher have been met for fracture of the alveolar bone (maxilla) and splintering of the buccal plate. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905 (2017). Since November 5, 2018, the criteria for a 50 percent rating but no higher have been met for fracture of the alveolar bone (maxilla) and splintering of the buccal plate. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to February 1987. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Agency of Original Jurisdiction (AOJ) that, in relevant part, denied an increased rating for the Veteran's fracture of the alveolar bone (maxilla) and splintering of the buccal plate and denied entitlement to a TDIU. The Board remanded these matters for further development in January 2018. In a March 20019 rating decision, the AOJ increased the rating for the fracture of the maxilla to 40 percent effective November 5, 2018, and granted TDIU effective November 8, 2018. The increase to 40 percent for the fracture of the maxilla did not constitute a full grant of the benefits sought in this appeal, and the Veteran's claims for higher evaluations before and after November 8, 2018 remain on appeal. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The TDIU claim is part of the increased rating claims before the Board, and entitlement to TDIU before November 8, 2018 remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009) The Board remanded these matters again in May 2019 to obtain a new VA examination. Examinations were provided in October 2020, December 2021, and May 2023. The AOJ issued a Supplemental Statement of the Case in May 2023, and the matters were returned to the Board for further consideration. The Board notes that the AOJ issued a rating decision in October 2020 that granted service connection for loss of the maxilla and assigned a 50 percent rating effective September 23, 2020. In November 2020 the Veteran submitted a VA Form 10182 Notice of Disagreement seeking an earlier effective date for the new 50 percent evaluation and attempting to seek an earlier effective date for the 40 percent evaluation for the fracture of the maxilla at issue in this appeal. The claim for an earlier effective date for the newly assigned 50 percent rating for loss of maxilla will be addressed in a separate appeal under the modernized review system. However, in January 2022 the Board sent the Veteran and his attorney a letter informing them that the VA Form 10182 could not be accepted as to the issue of an increased rating and earlier effective date for the fracture of the alveolar bone (maxilla) and splintering of the buccal plate because the relevant rating decision had implemented a partial grant of entitlement to a higher disability rating for fracture of the alveolar bone (maxilla) and splintering of the buccal plate following a Board remand. The Board also notes that the November 2020 VA Form 10182 would not have been timely to opt any issue into the modernized system from the prior March 2019 rating decision, and that the October 2020 rating decision did not address the ratings assigned for the fracture and splintering that is subject to this appeal. As such, the ratings claims involving the Veteran's service-connected fracture of the alveolar bone (maxilla) and splintering of the buccal plate remains part of this appeal. Increased Rating Ratings for fracture of the alveolar bone (maxilla) and splintering of the buccal plate. The Veteran seeks increased ratings for his service-connected fracture of the alveolar bone (maxilla) and splintering of the buccal plate. His attorney has also argued that the disability may be more appropriately rated under a different diagnostic code, or that separate compensable ratings may be warranted for the disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's fracture of the alveolar bone (maxilla) and splintering of the buccal plate is assigned a 0 percent noncompensable rating before November 5, 2018, and a 40 percent rating thereafter. The disability has been rated under various diagnostic codes during the period on appeal. In the September 2011 rating decision on appeal, the AOJ re-rated the disability under hyphenated Diagnostic Code 9999-9915 and continued the noncompensable evaluation. The March 2019 rating decision that increased the evaluation to 40 percent re-rated the disability again under Diagnostic Code 9905. When the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." 38 C.F.R. § 4.27. During the pendency of this appeal, VA issued new schedular criteria for rating dental and oral conditions under 38 C.F.R. § 4.150, which became effective September 10, 2017. 82 Fed. Reg. 36,080 (Aug. 3, 2017). Diagnostic Code 9915 was not affected by these amendments. However, diagnostic Code 9905 was amended. Diagnostic Code 9915 applies to loss of half or less of the maxilla and provides a 0 percent noncompensable rating for loss of less than 25 percent of the maxilla replaceable by prosthesis. A 20 percent rating is warranted when there is loss of less than 25 percent of the maxilla not replaceable by prosthesis. A 30 percent rating is warranted when there is loss of 25 to 50 percent of the maxilla replaceable by prosthesis. A 40 percent rating is warranted when there is loss of 25 to 50 percent of the maxilla not replaceable by prosthesis. 38 C.F.R. § 4.150, Diagnostic Code 9915. Under the prior version of Diagnostic Code 9905, a 10 percent evaluation was warranted for either a range of lateral excursion from 0 to 4 millimeters or an interincisal range from 31 to 40 millimeters. A 20 percent evaluation was warranted for an interincisal range from 21 to 30 millimeters. A 30 percent evaluation was warranted for an interincisal range from 11 to 20 millimeters. A 40 percent evaluation was warranted for an interincisal range from 0 to 10 millimeters. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2017). Under the current version of Diagnostic Code 9905, a 10 percent evaluation is warranted for a range of lateral excursion from 0 to 4 millimeters or an interincisal range of 30 to 34 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 20 percent evaluation is warranted for an interincisal range of 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, and for an interincisal range of 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 30 percent evaluation is warranted for an interincisal range of 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, and for an interincisal range of 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, as well as for an interincisal range of 11 to 20 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 40 percent evaluation is warranted for an interincisal range of 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, and for an interincisal range of 11 to 20 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods, as well as for an interincisal range of 0 to 10 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A maximum 50 percent evaluation is warranted for an interincisal range of 0 to 10 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2022). Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Id. at Diagnostic Code 9905, Note (1). For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 millimeters. Id. at Note (2). Also, 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 semi-soft foods, and the use of texture-modified diets must be recorded or verified by a physician. Id. at Note (3). 1. Entitlement to a compensable rating before November 5, 2018. The Veteran filed his increased rating claim in December 2010 and was provided a VA examination in March 2011. The Veteran's primary complaint during the examination was that he needed new dentures. He reported having no pain. The examiner noted the Veteran had four remaining teeth that needed extracted, and that the remaining teeth were missing and were replaced by a complete maxillary denture and a partial mandibular denture that needed replacement. The examiner also noted that the Veteran had no complaints except for expressing that he wanted new dentures. The Veteran reported pain and popping in his jaw in an April 2011 statement. The Veteran had a VA dental and oral evaluation in May 2013. He reported denture pressure spots and that his jaw was sore, with notes showing temporomandibular joint (TMJ) discomfort. A February 2015 periodic oral evaluation shows 65 millimeters of maximum interincisal range, 11 millimeters or left lateral motion, and 12 millimeters of right lateral motion, with no pain to manipulation, popping or clicking, or deviation noted during the evaluation. The Veteran was provided a dental and oral conditions examination in July 2013. The examiner noted that all the Veteran's teeth were now missing, and that the loss of teeth was due to trauma rather than loss of substance of the body of the maxilla or mandible. Imaging studies showed no evidence of fracture, malunion, or of any portion of the maxilla or mandible currently being missing, fractures, or splintered. The examiner noted the Veteran had complete maxillary and mandibular dentures, that his speech was not affected, and that he functioned well with the dentures. A TMJ section of the examination report shows the Veteran had reported popping and clicking of the right joint. Range of motion testing showed 45 millimeters of maximum interincisal range, with 15 millimeters of left and right lateral motion. There was no pain during the examination. Here, the evidence weighs persuasively against assigning a compensable rating under Diagnostic Code 9915 before November 5, 2018. The VA examinations, including the July 2013 examination and imaging reports, show the Veteran did not have any loss of the maxilla. An evaluation under Diagnostic Code 9915, including a 0 percent noncompensable rating, requires some loss of the maxilla. As explained above, no symptoms were identified during the initial March 2011 examination, and the July 2013 examination demonstrated no loss of the maxilla. The November 5, 2018 oral conditions examination included imaging studies which also showed no unusual findings other than loss of teeth. That examiner noted no loss of the maxilla. There is conflicting evidence as to whether the Veteran has loss of the maxilla after November 5, 2018, which will be addressed in greater detail below. However, the evidence before November 5, 2018 demonstrates the Veteran did not have any loss of the maxilla, which was confirmed by imaging studies. As such, an evaluation under Diagnostic Code 9915 is not warranted. The evidence is approximately in equipoise as to whether a 10 percent rating is warranted under Diagnostic Code 9905 for and temporomandibular disorder and painful motion of the TMJ. The March 2011 examination shows no pain. However, the Veteran reported jaw pain in April 2011. The later May 2013 VA dental evaluation and the July 2013 VA examination each show the Veteran now had TMJ pain and discomfort. Painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. It is somewhat unclear when the Veteran began experiencing pain in his right TMJ as identified in the May 2013 dental evaluation. As noted by the Board in our prior May 2019 remand, the earlier March 2011 examination did not account for flareups or repeated use over time. The May 2013 evaluation and July 2013 examination indicate the Veteran had TMJ pain and discomfort in his jaw. There is some conflicting evidence regarding TMJ pain and discomfort before November 5, 2018. However, any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38?C.F.R. §?4.3. As such, a 10 percent rating is warranted under the old and new versions of Diagnostic Code 9905 for painful motion of the TMJ. A rating in excess of 10 percent is not warranted. The evidence does not demonstrate that the criteria for a 20 percent evaluation under either the old or new versions of Diagnostic Code 9905 are more nearly approximated, even considering flareups and repeated use over time. The Board acknowledges that the March 2011, May 2013, and July 2013 evaluations do not specifically account for flareups or repeated use. However, no pain was present during any of these evaluations. The Veteran denied experiencing any pain at all during the March 2011 examination. The May 2013 dental evaluation indicates the Veteran's jaw disability and dentures occasionally caused pain and discomfort. No pain noted during the July 2013 examination, which shows no pain during manipulation or during initial TMJ range of motion testing. However, the Veteran did report occasional pain, discomfort, popping, and clicking in his TMJ. The Board construes the lack of any pain and discomfort during initial testing, coupled with the Veteran's reports that he had occasional pain and discomfort, as persuasive evidence that he experienced TMJ pain and discomfort with repeated use over time and during flareups. Even accounting for flareups and use over time, before November 5, 2018, there is little indication that any TMJ pain or discomfort would have caused an interincisal range from 21 to 30 millimeters, or an interincisal range of 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, or an interincisal range of 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. While the Veteran did report some difficulties eating before November 5, 2018, the evidence weighs against finding his diet was restricted to soft and semi-solid foods. The Board finds the TMJ pain and discomfort described by the Veteran before November 5, 2018, and shown during VA dental evaluations and VA compensation examinations, are consistent and accurately compensated by a 10 percent rating. See De Luca, 8 Vet. App. at, 204-7;?38?C.F.R. §§?4.40, 4.45, 4.59. The Veteran's attorney has submitted multiple briefs arguing that a higher 40 percent evaluation should be assigned under Diagnostic Code 9913 for loss of teeth. Service treatment records VA examinations generally confirm that the Veteran lost multiple teeth at the time of his in-service injury and has subsequently lost the rest of his teeth due to the fracture of the alveolar bone (maxilla) and splintering of the buccal plate. A March 2011 letter also indicates that service connection for dental treatment purposes was granted for fractured teeth due to the Veteran's in-service injury. However, a compensable rating for the Veteran's disability would not be warranted under Diagnostic Code 9913. Under Diagnostic Code 9913, loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity, a noncompensable rating is warranted for loss of teeth where the loss of masticatory surface can be restored by suitable prosthesis. Where the lost masticatory surface cannot be restored by suitable prosthesis, a 10 percent rating is warranted where there is loss of all upper and lower teeth on one side, or all lower anterior teeth missing, or all upper anterior teeth missing. A 20 percent rating is warranted for loss of all upper and lower anterior teeth, or loss of all upper and lower posterior teeth. A 30 percent rating is warranted for loss of all lower teeth or loss of all upper teeth. A 40 percent rating is warranted for loss of all teeth. 38 C.F.R. § 4.150, Diagnostic Code 9913. A compensable evaluation is not warranted under Diagnostic Code 9913, as any compensable rating requires that the lost masticatory surface cannot be restored by suitable prosthesis. Here, multiple VA examinations confirm the Veteran's utilizes prostheses for his missing teeth, and has done so the entire period on appeal, including before November 5, 2018. The March 2011 VA examination shows the Veteran had a complete maxillary denture and partial removable mandibular denture. The July 2013 VA examination shows the masticatory surfaces were fully restored by suitable prostheses, that the Veteran had complete maxillary dentures and complete mandibular dentures replacing all missing teeth, and that he functioned well with the denture. Subsequent examinations in November 2018 and April 2023 confirm the Veteran continues to have full prosthesis dentures, and that the masticatory surfaces are suitably restored. The Veteran's credible complaints of ill-fitting dentures do not rise to the level required by Diagnostic Code 9913 for a compensable rating, and the fact that the Veteran has no teeth does not automatically qualify him for a 40 percent rating, or any compensable rating, under Diagnostic Code 9913. Considering the foregoing, the evidence weighs in favor of assigning a 10 percent rating under Diagnostic Code 9905 for painful motion of the temporomandibular joints. However, the evidence weighs persuasively against finding a rating in excess of 10 percent is warranted. 2. Entitlement to a rating in excess of 40 percent since November 5, 2018. The Veteran's fracture of the alveolar bone (maxilla) and splintering of the buccal plate has been assigned a 40 percent evaluation under Diagnostic Code 9905 since November 5, 2018. The Board notes that 40 percent is the maximum rating possible under the old version of Diagnostic Code 9905. However, the criteria for evaluating TMJ dysfunction under Diagnostic Code 9905 were amended effective September 10, 2017, and the 40 percent rating has been assigned using the newer amended criteria. Diagnostic Code 9905 now provides a 40 percent evaluation for an interincisal range of 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, and for an interincisal range of 11 to 20 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods, as well as for an interincisal range of 0 to 10 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A maximum 50 percent evaluation is warranted for an interincisal range of 0 to 10 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2022). After reviewing the evidence, the Board concludes that a 50 percent rating is warranted under Diagnostic Code 9905 for the Veteran's fracture of the alveolar bone (maxilla) and splintering of the buccal plate since November 5, 2018. However, no separate evaluations or higher ratings under other diagnostic codes are available. The Veteran was provided two separate VA examinations on November 5, 2018. The temporomandibular joint (TMJ) disorder examination showed the Veteran reported constant TMJ pains, that his lower jaw was numb, and that eating can be a challenge if his jaw popped out of joint. He reported flareups consisting of his jaw locking in place with pain and difficulty eating. Initial range of motion testing showed interincisal range from 21 to 29 millimeters with pain on opening and right and left lateral excursion. There was no additional loss of range of motion after three repetitions. The examiner did indicate that pain, fatigue, weakness, lack of endurance, and incoordination would cause additional functional loss with use over time and during flareups but did not provide any range of motion estimates without explanation. The examiner indicated the Veteran did not require a mechanically altered foods diet. The November 5, 2018 oral and dental conditions examination again showed the Veteran's reports of constant TMJ pains, that his lower jaw was numb, and that eating can be a challenge if his jaw popped out of joint. The Veteran also reported that his dentures had not been fitting well and caused blisters, and that getting them repaired is time-consuming. The examiner noted that all the Veteran's teeth were missing, and that the masticatory surfaces can be restored by suitable prosthesis. Imaging studies showed no unusual findings other than the Veteran's missing teeth, and no loss of the maxilla was noted. A new oral and dental conditions examination was provided in September 2020. The Veteran reported that his jaw hurts when shifting to the right, and that he had more pain in his right TMJ than the left. He also reported that his jaw locks in place, and that he can only open his mouth 10 millimeters. The examiner noted the Veteran's dentures were ill-fitting and he had a soft tissue reduction. The examiner noted complete loss of the mandible between angles and loss of half or more of the mandible, including the ramus, involving loss of temporomandibular articulation, and that the loss is replaceable by prosthesis. The examiner also indicated the Veteran had loss of more than half of the maxilla, also replaceable by prosthesis. No loss of the hard palate was found, and there was no malunion or nonunion of the maxilla. Imaging studies showed flabby tissue on the maxilla and that the Veteran had arthritis of the jaw discs. In a November 2020 addendum opinion, the examiner who performed the September 2020 examination clarified that he had observed flabby tissue on the Veteran's maxilla and that the Veteran's dentures were ill-fitting. In a February 2021 addendum, the examiner clarified that the Veteran did not have complete loss of the mandible between of mandible between angles, and indicated the Veteran had no loss of the mandible, and instead that the Veteran's dentures were not the proper fit. New examinations were provided in May 2021. The oral and dental conditions examination shows the Veteran reported he was unable to eat certain foods and mostly ate soft foods due to jaw pain, and that his dentures were still ill-fitting with occasional numbness in his jaw. No loss of the mandible, to include the ramus, was noted. No loss of the maxilla or hard palate was noted. There was no malunion or nonunion of the maxilla The May 2021 temporomandibular disorder examination showed the Veteran reported severe pain in his jaw, that the jaw at times goes numb, and that he had trouble chewing food. Flareups consisted of the Veteran's jaw bones aching and getting tired, and he was not able to eat certain foods and just a soft food diet. Initial range of motion testing showed interincisal range was greater than 34 millimeters, with lateral right and left excursion from 0 to 4 millimeters and pain when opening the mouth. The examiner indicated pain, fatigue, weakness, lack of endurance, and incoordination would cause additional functional loss with repeated use over time and with flareups and estimated that interincisal range of motion would fall to 0 to 10 millimeters during flareups. The examiner determined the Veteran's diet was restricted to all mechanically altered foods, to include full liquid, puree foods, soft foods, and semi-solid foods. Finally, new examinations were provided again in April 2023. During the oral and dental conditions examination, the Veteran reported pain with chewing foods, popping and cracking of his TMJ joints, limited range of motion, and numbness. There was no loss of the mandible and loss of less than 25 percent of the maxilla that is replaceable by prosthesis. There was no malunion or nonunion of the mandible. The April 2023 temporomandibular disorder examination shows the Veteran's TMJ problems continued to cause him pain, limitations of opening his mouth, difficulty chewing certain foods, and fatigue. Flareups consisted of increased and intense pain with flareups lasting three days on average, and that the flareups could occur when eating food that was difficult to chew or by simply yawning. Initial range of motion testing showed interincisal range was 11 to 20 millimeters with pain on mouth opening and lateral excursion. Three repetitions caused no additional loss of range of motion. The examiner estimated that pain, fatigability, weakness, and lack of endurance would cause additional functional impairment, but did not indicate there would be any additional loss of range of motion. The examiner did not find that the Veteran required a diet of mechanically altered foods. However, the Veteran did report that he could not eat certain foods during the examination. Considering the foregoing, the schedular maximum 50 percent evaluation under Diagnostic Code 9905 is warranted from November 5, 2018. A 50 percent rating requires an interincisal range of 0 to 10 millimeters of maximum unassisted vertical opening, with dietary restrictions to all mechanically altered foods. The November 2018 examination does not include TMJ range of motion testing but indicates the Veteran had highly restricted range of motion due to his TMJ pain. The September 2020 examination also does not include TMJ range of motion testing, but the Veteran reported that he was only able to open his mouth to 10 millimeters at most. This was later confirmed by the May 2021 examination, in which the examiner estimated there would be an interincisal range of 0 to 10 millimeters of maximum unassisted vertical opening during flareups. Although the April 2023 examiner found the Veteran's interincisal range was 11 to 20 millimeters, the examiner did find that pain, fatigability, weakness, and lack of endurance would cause additional functional impairment during flareups and with repeated use over time. However, she provided no explanation for finding there would be no additional loss of range of motion during such flareups or repeated use. The Veteran did report that his flareups caused increased difficulty opening his mouth. Furthermore, the Veteran's statements regarding his flareups during the April 2023 examination suggest his diet was still restricted to primarily soft foods considering that he had flareups of severe pain lasting for days if he tried to eat anything that was more difficult to chew. Resolving reasonable doubt in the Veteran's favor, the Board finds the criteria for a 50 percent rating have been more nearly approximated since November 5, 2018, for interincisal range of 0 to 10 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2022). A separate 50 percent rating has been assigned for loss of maxilla as secondary to the Veteran's fracture of the alveolar bone and splintering of the buccal plate. The rating is currently effective September 23, 2020, and is assigned under Diagnostic Code 9914. However, the issue of any earlier effective date or a higher evaluation for this disability is not currently before the Board. The Veteran has not indicated that he disagrees with the 50 percent evaluation that has been assigned under Diagnostic Code 9914. However, the evidence weighs persuasively against finding that the criteria for a 100 percent rating under Diagnostic Code 0014 have been more nearly approximated. Diagnostic Code 9914 pertains to loss of more than half of the maxilla and provides a 50 percent rating if replaceable by prosthesis and a 100 percent rating if not replaceable by a prosthesis. There is conflicting evidence as to whether the Veteran has any loss of the maxilla and, if so, to what extent. The September 2020 examiner indicated the Veteran had loss of the maxilla and explained that he had observed flabby tissue of the maxilla. However, the November 2020 addendum opinion clarified the Veteran had flabby tissue of the maxilla instead of loss of more than half of the maxilla. The February 2021 addendum opinion also shows the examiner had partially completed the September 2020 examination report incorrectly regarding loss. Nevertheless, a separate 50 percent rating was assigned based on the September 2020 examination, and the September 2020 examiner explicitly found that the maxilla loss was replaceable by a prosthesis. No maxilla loss was noted on the May 2021, and loss of less than 25 percent of the maxilla was noted on the April 2023 examination. This 25 percent loss was also noted as replaceable by prosthesis. Despite the conflicting evidence as to how much of the Veteran's maxilla is missing, each examiner who identified loss also determined the loss was replaceable with a prosthesis based on a thorough physical examination of the Veteran. The Veteran has worn dentures throughout the appeals period. The evidence weighs persuasively against finding any loss of the maxilla is not replaceable by a prosthesis, and a 100 percent rating is not warranted under Diagnostic Code 9914. Whether an effective date before September 23, 2020 is warranted for the 50 percent rating under Diagnostic Code 9914 is not part of this appeal, and will be addressed by the Board in a separate appeal under the modernized system as initiated by the November 2020 VA Form 10182. The April 2023 examination does show the Veteran has loss of less than 25 percent of the maxilla that is replaceable by prosthesis, implicating Diagnostic Code 9915 which applies to loss of half or less of the maxilla. However, the Veteran is already in receipt of the 50 percent evaluation for loss of 50 percent of the maxilla replaceable with a prosthesis. Rating any loss of 25 percent or less of the maxilla under Diagnostic Code 9915 since September 23, 2020 would constitute impermissible pyramiding. 38 C.F.R. § 4.14. In addition, no examination before September 23, 2020, indicated the Veteran had any loss of the maxilla. The Board has considered the other Diagnostic Codes used to rate dental and oral conditions. However, these Diagnostic Codes are not applicable. The Veteran does not have osteomyelitis or osteoradionecrosis. There is no nonunion or malunion of the mandible or maxilla, with or without diagnostic imaging studies. There is no condyloid or coronoid process or loss of the hard palate. As explained above, the fact that the Veteran has no teeth does not automatically qualify him for a compensable rating under Diagnostic Code 9913. In sum, the criteria for a 50 percent rating, but no higher, have been met under Diagnostic Code 9905 from November 5, 2018. The Board must address the effective date of this 50 percent evaluation. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred. 38?U.S.C. §?5110 (b); 38?C.F.R. §?3.400 (o). The AOJ assigned November 5, 2018, the date of a VA examination, as the effective date for the 40 percent evaluation based on painful and limited motion of the Veteran's TMJ. This was the first date the AOJ found it was factually ascertainable that the Veteran's disability met the requirements for a 40 percent rating under Diagnostic Code 9905. The Board has increased the rating to 50 percent effective the same date. Before November 5, 2018, the most recent information regarding the severity of the Veteran's fracture of the alveolar bone (maxilla) and splintering of the buccal plate, including range of motion measurements and his lay statements, is from the February 2015 VA dental and oral evaluation. The February 2015 records showed 65 millimeters of maximum interincisal range, 11 millimeters or left lateral motion, and 12 millimeters of right lateral motion, with no pain to manipulation, popping or clicking, or deviation noted during the evaluation. This is well above the typical thresholds for any compensable evaluation under the new or old versions of Diagnostic Code 9905. As already explained, the Board has assigned a compensable evaluation under 38 C.F.R. § 4.59 before November 5, 2018 based on the Veteran's reports of intermittent TMJ pain and discomfort. Other evidence and arguments submitted in support of the claim before November 5, 2018, included multiple briefs and arguments from the Veteran's attorney, and once such brief was received as early as July 2012. However, the arguments advanced focused primarily on whether a higher evaluation was warranted based on the Veteran's loss of teeth. Indeed, the Board remanded this claim in May 2019 to determine whether the Veteran had lost any more teeth due to his service-connected disability, although the evidence showed the Veteran had lost all his teeth years before the May 2019 remand was issued. However, the evidence did not show the Veteran's symptoms had worsened before November 5, 2018, to warrant a higher evaluation under Diagnostic Code 9905. In sum, it was only factually ascertainable that the Veteran's fracture of the alveolar bone (maxilla) and splintering of the buccal plate symptoms had worsened on November 5, 2018. The probative, persuasive evidence shows no such worsening before the November 5, 2018 examination. The effective date of the increase is November 5, 2018, the date the evidence showed an increase in disability had occurred. 38?U.S.C. §?5110 (b); 38?C.F.R. §?3.400 (o). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) before November 8, 2018, is remanded. The Veteran claimed entitlement to a TDIU in a December 2010 application for compensation that also included his claims for higher ratings for his fracture of the alveolar bone (maxilla) and splintering of the buccal plate, and a separate claim for service connection for an acquired psychiatric disorder that is no longer on appeal. The first VA Form 21-8940 application for a TDIU, received in April 2011, shows he claimed that his PTSD prevented him from securing or following a substantially gainful occupation. Service connection for PTSD with depression was granted in a September 2011 rating decision. He has since contended that all his service-connected disabilities render him unemployable. The Veteran's service-connected disabilities first met the schedular requirements for a TDIU on November 8, 2018, the date the rating for his PTSD with depression was increased to 70 percent. new overall rating from November 8, 2018. Before this date, the Veteran did not have a single disability ratable at 60 percent or more, or at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. Before November 8, 2018, and even considering the Board's award of a 10 percent rating for the Veteran's jaw disability, the Veteran's PTSD with depression was rated 50 percent, with only sufficient additional disability to bring the combined rating to 60 percent. Where the schedular requirements for a TDIU are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Here, entitlement to a TDIU was granted effective November 8, 2018, in a March 2019 rating decision that also increased the rating for the Veteran's PTSD with depression to 70 percent. The rating decision makes clear that the Agency of Original Jurisdiction considered only the Veteran's PTSD and depression symptoms when granting the TDIU. When explaining why the TDIU was warranted, the AOJ found that the Veteran had occupational and social impairment with deficiencies in most areas due to symptoms of his PTSD, and that the November 8, 2018 VA psychiatric examiner had found difficulty communicating with others, neglect of hygiene and personal appearance, and difficulty in adapting to stressful circumstances, including work or a work-like setting, due to PTSD. The Veteran and his attorney have long argued that his PTSD and depression prevented him from securing or following a substantially gainful occupation. He attributed this impairment to PTSD alone in the initial application for a TDIU. The Veteran's attorney had submitted multiple briefs detailing the Veteran's psychiatric symptoms and functional impairment before November 8, 2018. A May 2013 PTSD examination does indicate the Veteran's symptoms caused clinically significant distress or impairment in social, occupational, or other areas of functioning, and a December 2012 private medical assessment suggests the Veteran was unemployable in part due to his PTSD. There is evidence the Veteran's PTSD with depression may have rendered him unable to secure or follow a substantially gainful occupation before he met the schedular requirements for a TDIU on November 8, 2018. Veteran's case should be submitted to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) before November 8, 2018. The matters are REMANDED for the following action: 1. Refer the Veteran's claim for TDIU to the Director of Compensation Service for consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) for the period before November 8, 2018. 2. Readjudicate the Veteran's claims. If benefits sought are not fully granted, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.