Citation Nr: 0006975 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-07 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased disability rating for temporomandibular joint syndrome (hereinafter "TMJ"), currently rated as 20 percent disabling. 2. Entitlement to an increased disability rating for a laparotomy scar due to lysis of abdominal adhesions and appendectomy (hereinafter "laparotomy scar"), currently rated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran served on active duty from January 1989 to October 1994, with 6 years and two months prior active service. This appeal arises before the Board of Veterans' Appeals (Board) from a December 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, decreased the rating for the veteran's service-connected TMJ from 10 percent to noncompensable and denied a compensable rating for her service-connected laparotomy scar. During the pendency of this appeal, a September 1998 RO determination increased the veteran's disability rating for TMJ to 20 percent. Inasmuch as the veteran has continued to express dissatisfaction with this disability rating, has otherwise not withdrawn his appeal for an increased disability rating for TMJ, and in light of the fact that the maximum schedular disability rating has not been assigned to date, the appeal continues. See AB v. Brown, 6 Vet. App. 35, 38 (1993). It is also noted that the Board sent a letter to the veteran in January 2000, at her last known address, for the purpose of clarifying whether she still desired a hearing and, if so, what type of hearing. As the Board has not received a response to this letter, the Board will proceed with its appellate review. FINDINGS OF FACT 1. The veteran's TMJ is not shown to be productive of limited temporomandibular articulation less than 21 mm. 2. The veteran's laparotomy scar is not shown to be any of the following: poorly nourished with repeated ulceration; objectively painful or tender; productive of compensable limitation of function of the abdomen; or productive of more than mild adhesions to the peritoneum. CONCLUSIONS OF LAW 1. The schedular criteria for a disability rating in excess of 20 percent for TMJ have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.150, Diagnostic Code 9905. 2. The schedular criteria for an increased (compensable) disability rating for a laparotomy scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.114, 4.118, Diagnostic Codes 7301, 7803, 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits under a law administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans claims (Court) has held that an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). Once a claimant has presented a well-grounded claim, VA has a duty to assist the claimant in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issues on appeal has been obtained. The evidence includes the veteran's service medical records, VA examination reports, and the veteran's written statements. The Board does not know of any additional relevant evidence that is available. Therefore, no further assistance to the veteran with the development of evidence is required. Pursuant to a July 1995 RO rating decision, the veteran was initially granted service connection for TMJ and a laparotomy scar, which were assigned disability ratings of 10 percent and noncompensable, respectively. As previously noted, a September 1998 RO determination increased the veteran's disability rating for TMJ to 20 percent, effective May 1997, which has remained in effect ever since. The RO has maintained the noncompensable rating for the veteran's laparotomy scar since service-connection was established. Under the laws administered by VA, 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. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (1999) I. Increased rating for TMJ An April 1998 VA dental and oral examination report recounted the veteran's complaints of temporomandibular joint pain, difficulty chewing, clicking and pain primarily on the left side. Objectively, a popping noise was audible on the left side with the aid of a stethoscope, although it was not detectable through palpation or without a stethoscope. Her incisal opening was measured to 21-mm, left lateral excursion was measured to 11-mm, and right lateral excursion was measured to 7-mm. The veteran complained that this motion was painful. There was severe generalized bone loss due to periodontitis, tobacco staining, and gingivitis. The diagnosis was left side temporomandibular joint pathology and severe periodontitis. It was recommended that the veteran wear her temporomandibular joint bite splint. The veteran's TMJ is rated under the schedule of ratings for dental and oral conditions, 38 C.F.R. § 4.150, Diagnostic Code 9905, which provides the guidelines for evaluating limited motion of the temporomandibular articulation. In the inter-incisal range of motion, a 40 percent disability rating is assignable for movement restricted to between 0 to 10-mm, a 30 percent rating is assignable for movement restricted to between 11 to 20-mm, and a 20 percent rating is assignable for assignable for movement restricted to between 21 to 30- mm. The Board observes that the relevant medical evidence consists solely of an April 1998 dental and oral examination report, which specifically demonstrates that the veteran's 21-mm inter-incisal range of motion is consistent with the criteria for the currently assigned 20 percent disability rating. The Board has considered the application of 38 C.F.R. §§ 4.40 (consider "functional loss" "due to pain") and 4.45 (consider "[p]ain on movement, swelling, deformity, or atrophy on disuse" in addition to "[i]nstability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing", incoordination, and excess fatigability) in this case. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). While it is apparent that the veteran has pain upon motion of the temporomandibular joint, an inter-incisal range of motion of 21 mm warrants no more than a 20 percent disability evaluation. There is no medical evidence to show that pain, flare-ups of pain, or any other symptom further limits such motion so as to support a rating in excess of 20 percent under the applicable rating criteria. That is, although the veteran subjectively complains of pain through all phases of movement of the mandible, "a finding of functional loss due to pain must be 'supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40." Johnston v. Brown, 10 Vet. App. 80, 85 (1997). While the veteran subjectively complained of discomfort in the movement of the jaw, the pathology and objective observations of the claimant's behavior do not satisfy the requirements for a higher evaluation. Thus, the Board finds that 38 C.F.R. §§ 4.40 and 4.45 do not provide a basis for a higher rating. The Board has also considered Diagnostic Codes 9901-3, as they are relevant to the veteran's disability, and provide for a higher disability than the current 20 percent rating. The Board finds these regulations inapplicable, however, as there is no medical evidence showing that the veteran suffers from any loss of the mandible, or nonunion of the mandible. Therefore, as the Board finds that the veteran's symptoms of TMJ more nearly approximate the schedular criteria for a 20 percent rating, the Board concludes that the preponderance of the evidence is against the veteran's claim for a disability rating in excess of 20 percent for TMJ. II. Increased rating for a laparotomy scar A July 1997 VA scars examination report noted that the laparotomy scar measured 5-inches by 1/4-inch, and opined that it was not disfiguring. An April 1998 VA scars examination report noted that the laparotomy scar measured 71/2-cm by 1-cm. The veteran complained that the scar was sometimes painful, and that she feels a pulling sensation when rotating her trunk or when she rises from a chair suddenly. Objectively, the scar manifested no tenderness, adhesions, alterations, elevation, depression, inflammation, underlying tissue loss, limitation of functions, or disfigurement. Indeed, the examiner commented that the scar was barely discernable. The veteran's disability due to a laparotomy scar may be rated under 38 C.F.R. § 4.118, Diagnostic Codes 7803-5. Diagnostic Code 7803 provides for a maximum 10 percent disability rating for superficial scars that are poorly nourished and accompanied by repeated ulcerations, while Diagnostic Code 7804 provides for a maximum 10 percent disability rating for superficial scars that are tender and painful on objective demonstration. Diagnostic Code 7805 notes that a scar may be rated on the basis of limitation of function of the affected part. The objective medical evidence of record demonstrates that the veteran's service-connected laparotomy scar is asymptomatic, including the absence of any of the specific manifestations listed under the schedular criteria of Diagnostic Codes 7803-4. Therefore, under these Diagnostic Codes, the preponderance of the evidence in against the veteran's claim for a compensable disability rating for a service-connected laparotomy scar. Upon application of Diagnostic Code 7805, the Board has considered the veteran's complaints of discomfort associated with her laparotomy scar when making certain movements. In so doing, the Board has applied 38 C.F.R. § 4.73, Diagnostic Code 5319, as it relates to limitation of function of the abdominal wall. However, as there is no medical evidence showing more than slight impairment of the abdominal wall due to the scar, a compensable disability rating under this regulation is not available. The Board has also considered 38 C.F.R. § 4.114, Diagnostic Code 7301, which provides the guidelines for evaluating adhesions to the peritoneum. However, as the medical evidence does not show more than mild symptoms associated with any such adhesions, a compensable disability rating pursuant to this code is not warranted. III. Conclusion In reaching this decision the Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board concludes that a disability rating in excess of 20 percent for TMJ, and a compensable disability rating for a laparotomy scar, are not warranted. The Board further finds, as did the RO, that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that the veteran's disabilities have not resulted in marked interference with his employment, nor have frequent periods of hospitalization been necessary. Therefore, the criteria required for submission concerning the assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating in excess of 20 percent for TMJ is denied. A compensable disability rating for a laparotomy scar is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals