TEMPOROMANDIBULAR JOINT (TMJ) DISORDER

C. J. MCENTEE · 2022 · Case ID: A22011786

MIXED

Summary

The Veteran, a Veteran who served from February 1996 to February 1999 and again from January 2008 to December 2008, with additional reservist service, appealed the denial of an initial compensable disability rating for limitation of motion of the temporomandibular articulation (jaw). The Veteran had previously been granted service connection for this condition with a 0 percent rating. The Board reviewed the Veteran's lay statements, VA treatment records, and a November 2020 VA compensation examination report. The VA examination indicated normal range of motion for lateral excursion and interincisal distance, despite the Veteran's complaints of pain and flare-ups. The examiner found the Veteran's complaints of flare-ups medically inconsistent with the examination findings. The Board found the evidence weighed against the claim for a compensable rating, as the objective findings did not meet the criteria for a 10 percent rating under Diagnostic Code 9905. The Board denied the claim for a compensable rating. The case was remanded for an addendum opinion regarding entitlement to service connection for erectile dysfunction (ED) as secondary to service-connected PTSD, as the prior VA examination failed to address aggravation of ED by PTSD or its treatment.

Rationale

Objective examination findings indicated normal range of motion for lateral excursion and interincisal distance.; Veteran's complaints of pain and flare-ups were found medically inconsistent with examination findings.; Evidence weighed against the claim for a compensable rating.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201221-128402

Full Decision Text

Citation Nr: A22011786
Decision Date: 06/23/22 Archive Date: 06/23/22

DOCKET NO. 201221-128402
DATE: June 23, 2022

ORDER

Entitlement to an initial compensable disability rating for limitation of motion, temporomandibular articulation, is denied.

REMANDED

The claim of entitlement to service connection for loss of use of creative organ, as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded.

FINDING OF FACT

Bilateral lateral excursion exceeds 4 millimeters (mm) and interincisal distance exceeds 34 mm.

CONCLUSION OF LAW

The criteria for an initial compensable disability rating for limitation of motion, temporomandibular articulation, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.150.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1996 to February 1999 and from January 2008 to December 2008. He also served several years as a reservist.

This matter comes to the Board of Veterans' Appeals (Board) on appeal of a December 2020 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appealed the decision in a December 2020 VA Form 10182, Decision Review Request: Board Appeal, notice of disagreement (NOD).

In May 2021, the Veteran testified in a Board hearing. A transcript of the hearing is included in the claims file and has been reviewed.

Disability Rating

In October 2019, the Veteran claimed entitlement to service connection for a jaw disorder. In the rating decision on appeal, the RO granted the claim and assigned a 0 percent rating. The Veteran appealed the assigned initial rating.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs) 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of 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.

When assessing the severity of a musculoskeletal disability that is rated based on limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as after repeated usage over time or during times when symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When feasible, evaluation should consider range of motion while weight-bearing and non-weight-bearing, and in passive and active motion. See 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158 (2016) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. To deny a claim on the merits, the evidence must clearly weigh against the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The relevant evidence in this matter consists of lay statements from the Veteran, VA treatment records, and a November 2020 VA compensation examination report.

This evidence indicates that that a compensable rating is unwarranted for limitation of motion, temporomandibular articulation.

The relevant evidence in this matter consists of lay statements from the Veteran, VA treatment records, and a November 2020 VA compensation examination report.

This evidence indicates that that a compensable rating is unwarranted for limitation of motion, temporomandibular articulation.

The RO evaluated the Veteran's disability under DC 9905 of 38 U.S.C. § 4.150. This DC provides compensable ratings ranging from 10 to 50 percent for temporomandibular disorder (TMD). The minimum 10 percent evaluation is warranted for a range of lateral excursion from zero to four millimeters or for an interincisal range of 30 to 34 millimeters (mm) of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 millimeters. 38 U.S.C. § 4.150, DC 9905, Note (2).

The November 2020 VA report indicates noncompensable limitation. The examiner found over 4 mm of lateral excursion on each side and found over 34 mm of inter-incisal distance. The examiner noted the Veteran's complaints of pain, of flare ups, and of occasional inability to eat due to flare ups. But the examiner found the Veteran's complaints regarding flare ups "medically inconsistent" with the examination findings, which indicated normal interincisal distance and lateral movements greater than 4 mm. The report also notes that the examination was conducted after repeated use over time.

The Board has reviewed the VA treatment records dated prior to the December 2020 rating decision, seeking evidence that would support the assignment of a compensable rating. The records note occasional complaints of "TMJ" but do not provide any information regarding range of motion. Further, the records do not contain any information indicating eating limitations due to jaw pain.

In sum, the relevant evidence of record demonstrates that the criteria for a compensable rating are unmet here the evidence of record addressing the criteria under DC 9905 indicates lateral excursion beyond 4 mm on each side and indicates interincisal range beyond 34 mm.

As the evidence weighs against the claim for a compensable initial rating, the reasonable doubt doctrine does not apply. The claim is therefore denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

REASONS FOR REMAND

A remand is necessary for an addendum opinion addressing the claim of entitlement to service connection for erectile dysfunction (ED). A duty to assist error occurred prior to the rating decision on appeal. 38 C.F.R. §§ 3.159(c), 20.802 (a).

The Veteran underwent VA examination into the claim in December 2020. In the examination report, the examiner addressed the question of whether ED was due to or caused by PTSD. But the examiner did not address the question of whether ED has been aggravated by PTSD. See 38 C.F.R. § 3.310.

The matter is REMANDED for the following action:

Return the case to the VA examiner who issued the December 2020 VA report, or to a suitable substitute, for issuance of addendum opinion addressing the claim regarding ED. After reviewing the electronic claims file, the examiner should answer the following question:

Is it approximately at least as likely as not (i.e., probability of approximately 50 percent or more) that ED has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected PTSD, to include medication used for PTSD?

If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder.

In rendering the requested report, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.

In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture.

(Continued on the next page)

Please explain in detail any opinion provided and the supporting rationale.

C. J. McEntee

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Bosely, 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
note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.