BVA9502739 DOCKET NO. 93-09 984 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased (compensable) rating for limitation of motion of temporomandibular articulation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from July 1943 to January 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision from the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision, the RO denied an increased (compensable) rating for limitation of motion of temporomandibular articulation (jaw disorder). A RO hearing was held in November 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not granting a compensable rating for the jaw disorder. Specifically, the veteran asserts that he is unable to chew his food properly because of his jaw disorder and that the jaw disorder causes pain and discomfort. 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. 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 the preponderance of the evidence supports a 10 percent rating, and not in excess thereof, for the service- connected jaw disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's jaw disorder is primarily manifested by a maximum opening limited to about 35 mms. 3. The veteran's service-connected jaw disorder does not result in limitation of motion of the temporomandibular articulation with an inter-incisal range of 21 to 30 mm. CONCLUSION OF LAW The schedular criteria for a 10 percent rating, and not in excess thereof, for limitation of motion of temporomandibular articulation have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.150, including Diagnostic Code 9905 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service medical records indicate that in September 1945 the veteran was stabbed in service and suffered, among other things, an acute and mild sprain of the right temporo-mandibula articulation. Records show that his condition improved and he returned to duty later in September 1945. Based upon the service medical record findings, the RO, in a February 1948 rating decision granted service connection for limitation of motion of temporomandibular articulation and assigned a 20 percent disability rating under Diagnostic Code 9905 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.150. That rating was continued until March 1951, at which time the RO determined that the veteran's jaw disorder had improved and as such his disability rating was reduced to a noncompensable evaluation. That decision was based primarily on a January 1951 VA examination report which revealed that the veteran had normal range of motion of the temporomandibular articulation joint. The veteran next sought an increased (compensable) rating for his jaw disorder in September 1984. The RO, in a May 1985 rating decision, denied an increased rating for his jaw disorder. In March 1986 the Board denied the veteran's claim for an increased (compensable) evaluation for his jaw disorder. In March 1991 the veteran sought an increased rating for his jaw disorder. He averred that his condition had gotten more severe and that he was receiving treatment at a VA clinic. VA outpatient reports dated between March 1988 and September 1990 showed that the veteran was treated for several disorders. However, on an undated report the veteran told the examiner that in November 1987 he had a broken tooth in his right lower jaw. On a March 1988 report the examiner reported that the veteran needed dental work to his bottom right jaw. The veteran was accorded a VA dental examination in December 1991. The examiner reported that the veteran's mouth was well kept with serviceable full upper and partial lower dentures. He noted that opening and closing of the mouth seemed to be somewhat limited with a very uneven path and loud noises on the TMJ's. He reported that the veteran's lateral excursions were limited and that maximum opening was limited to about 35 mms. X-rays revealed obvious bone loss on lower anteriors. The examiner reported that the tenderness present on the right TMJ and the noises on functioning appeared to be related to a healed fracture of the right condyle. Based upon the VA outpatient and examination reports, the RO, in a February 1992 rating decision denied an increased (compensable) rating for limitation of motion of temporomandibular articulation. That decision was based primarily on the fact that the veteran did not have a compensable degree of limitation effecting his eating or speech. The RO noted that the veteran's current jaw complaints were related to an injury which appeared to have occurred years after service. However, there is no evidence on file to establish that the veteran's temporomandibular symptoms are not part of his service connected disorder. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The schedular criteria set forth under Diagnostic Code 9905 in effect at the time of the February 1992 rating decision is different than the current criteria. Under the old schedular criteria any definite limitation of motion of the temporomandibular articulation interfering with mastication or speech warranted a 10 percent evaluation. A 20 percent evaluation required that motion be limited to 1/2 inch (12.7 mm.). Under the current schedular criteria a 10 percent rating contemplates limitation of motion of temporomandibular articulation with an inter-incisal range of 31 to 40 mm or a range of lateral excursion from 0 to 4 mm. The next higher rating, 20 percent, requires limitation of motion of temporomandibular articulation with an inter-incisal range of 21 to 30 mm. The current schedular criteria became effective in February 1994. Under Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) the United States Court of Veterans Appeals (Court) held that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise. Accordingly, the Board will apply the current schedular criteria under Diagnostic Code 9905 as it is more favorable to the veteran. It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (1994). In addition, where there is 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. 38 C.F.R. Part 4, § 4.7 (1994). In determining whether a higher rating is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In weighing the evidence of record in this case, the Board considered the service medical records, VA examination and outpatient medical reports, as well as all of the evidence of record, in light of the veteran's contentions and hearing testimony. The findings included limitation of motion of the temporomandibular articulation with an inter-incisal range of 35 mms. That medical finding, along with the veteran's credible history of increasing jaw pain, supports the veteran's claim for an increased (compensable) rating to 10 percent, but not higher. Although the most recent VA examiner reported that the veteran's tenderness and noises on functioning of the jaw appeared to be related to the healed fracture of the right condyle, the schedular criteria for a compensable evaluation contemplates inter-incisal and lateral excursion ranges of motion only. A 20 percent evaluation under Code 9905 is not warranted as there is not a limitation of motion of the temporomandibular articulation with an inter-incisal range of 21 to 30 mm. The Board, after considering the reported findings of the VA examiners, in light of the veteran's contentions, finds that the evidence presents a disability picture that more nearly approximates the higher rating of 10 percent under current Diagnostic Code 9905. In any event by virtue of the benefit of the doubt doctrine, the law dictates that the veteran should win. Therefore, the Board finds that the veteran should be granted a higher rating. Accordingly, an increased rating for limitation of motion of temporomandibular articulation not higher than 10 percent is warranted. The regular schedular standards are shown to be adequate to compensate the veteran's disability. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). ORDER Entitlement to an evaluation of 10 percent, but not higher, for limitation of motion of temporomandibular articulation is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. JOAQUIN AGUAYO-PERELES 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.