BVA9504793 DOCKET NO. 93-12 208 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a compensable evaluation for subluxation of the left temporomandibular joint. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Associate Counsel INTRODUCTION The veteran had active service from August 1989 to August 1992. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an October 1992 rating decision of the Los Angeles, California Regional Office (hereinafter "the RO") which, in pertinent part, granted service connection for subluxation of the left temporomandibular joint and assigned a noncompensable disability evaluation. The veteran has been represented throughout this appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to grant a compensable evaluation for his service-connected subluxation of the left temporomandibular joint. The veteran contends, essentially, that his current symptomatology indicates that a higher disability evaluation is warranted for his left jaw disorder. He specifically points to difficulty eating associated with the disability. His representative argues that the statement of the case was deficient to the point that a remand is called for. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is adverse to the veteran's claim for a compensable evaluation for subluxation of the left temporomandibular joint. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's subluxation of the left temporomandibular joint has not been shown to be productive of other than subjective complaints with no limitation of motion and temporomandibular joint articulations within normal limits. 3. The temporomandibular disability does not result in definite limited motion interfering with mastication or speech. CONCLUSION OF LAW The schedular criteria for a compensable evaluation for subluxation of the left temporomandibular joint have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.3, 4.7, 4.31, 4.40 and Diagnostic Code 9905 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, a remand in order to allow for additional development of the record is not appropriate. I.. Historical Review The veteran's service medical records indicate that he was seen in April 1991 with complaints of neck pain and difficulty swallowing for the past one or two weeks. It was noted that the veteran had red, swollen tonsils. A June 1992 dental record noted that the veteran complained of popping of the left condyle on complete opening of his mouth. The veteran reported that this may be due to trauma suffered while in airborne school. The examiner noted that the veteran was presently asymptomatic. The veteran underwent a VA dental examination in October 1992. The veteran reported a history of frequent (about two times per week) soreness in the left temporomandibular joint with eating. He indicated that the episodes of pain began two years earlier and may have been initially associated with parachute jumps. The veteran further reported that his temporomandibular joint would pop and was sore. He indicated that the soreness was in the left masseter area rather than the point itself. The examiner noted that the extra-oral examination was within normal limits. The veteran had occasional mild popping in the left temporomandibular joint with wide opening. There was no pain to palpation of the masseter. As to the intra-oral examination, the veteran's temporomandibular joint articulations were within normal limits without limitation of motion. There was no pain to palpation of the other muscles of mastication. The veteran had excellent dentation in a good state of repair. The examiner reported that an X-ray was unremarkable with no pathology noted. The examiner diagnosed mild occasional myofascial pain associated with subluxation of the left temporomandibular joint. The veteran also underwent a VA general medical examination in October 1992. The veteran complained of left temporomandibular joint pain. It was noted that the veteran's teeth were within normal limits. The examiner also noted that the veteran had temporomandibular joint syndrome with occasional pain on mastication. The diagnosis was left temporomandibular joint syndrome. In October 1992, service connection was granted for subluxation of the left temporomandibular joint. A noncompensable disability evaluation was assigned and has remained in effect. II. Increased Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Any definite limitation of motion of the temporomandibular articulation interfering with mastication or speech warrants a 10 percent evaluation. A 20 percent evaluation requires that motion be limited to 1/2 inch (12.7 mm.). 38 C.F.R. Part 4, Diagnostic Code 9905 (1993). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a no-percent evaluation, a no-percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1993). VA treatment records dated in January 1993 indicated that the veteran was treated for a sebaceous cyst on the right scalp. In his March 1993 substantive appeal, the veteran reported that his service connected jaw disorder had caused significant discomfort, pain and limitations. The veteran stated that he must consider in detail how to eat a hamburger or hot dog as he could not reasonably open his mouth wide enough to do so. The veteran also related that he would have to restrain a yawn as it would lead to a day of discomfort and possibly pain. He indicated that he would have pain in the left jaw area after a day of festive eats. He also reported that he avoided chewing gum or eating hard foods. The Board has made a careful longitudinal review of the record. It is observed that the veteran's service medical records indicate that he complained of popping of the left condyle in June 1992. The examiner noted that the veteran was asymptomatic at that time. The October 1992 VA dental examination report noted that the veteran complained of frequent soreness in the left temporomandibular joint with eating, soreness in the left masseter area and of popping of his temporomandibular joint. The examiner noted that the veteran's temporomandibular articulations were within normal limits and that there was no limitation of motion. The diagnosis was mild occasional myofascial pain associated with subluxation of the left temporomandibular joint. The later October 1992 VA examination report noted a diagnosis of left temporomandibular joint syndrome. The Board further observes that in statements on appeal, the veteran has reported that his jaw disorder causes pain and discomfort and effects his eating habits. As the clinical record suggests symptomatology productive of no more than subjective complaints with no definite limitation of motion of the temporomandibular articulation interfering with mastication or speech, the Board concludes that an increased evaluation is not warranted for the veteran's left jaw disorder. Further, although the clinical record indicates that the veteran suffers from occasional myofascial pain, there is no evidence of any actual functional impairment. Simply put there is no definite limitation of motion shown to impair mastication or speech. Therefore, the Board also finds that the veteran's present disability evaluation encompasses his functional impairment due to pain. 38 C.F.R. § 4.40 (1993). Accordingly, a compensable evaluation for subluxation of the left temporomandibular joint is denied. We have considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1993), whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals (hereinafter "the Court") in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, we find that the evidence does not suggest that the veteran's left jaw disorder is productive of such an exceptional or unusual disability picture so as to render impractical the applicability of the regular schedular standards and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1993). We also conclude the statement of the case was adequate in that it clearly indicates the disability at issue is based upon functional impairment which simply, here, is not shown. ORDER A compensable evaluation for subluxation of the left temporomandibular joint is denied. E. W. SEERY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.