Need Help Understanding The Note In Schedule Of Ratings

[carlie]

This is from the Rating Decision:

The results of the exam show your mandible was normal.

X-ray of the maxilla showed evidence of pins used in your reconstructive surgery.

Arthritis was not shown. There was incomplete healing of the soft tissue in the right maxillary vestibule and scar tissue was evident. Your ramus and palates were normal.

Your temporomandibular articulation showed your

Inter-incisal range of motion was between 31 and 40 mm.

Your range of right and left excursion was between 0 to 4 mm.

The physician diagnosed incomplete healed right maxillary fracture.

An evaluation of 10 percent is assigned from October 1, 2007.

An evaluation of 10 percent is granted, whenever there is indication of

limited inter-incisal movement between 31 and 40 mm,

or lateral excursion between 0 and 4 mm.

Your evaluation is based upon temporomandibular and lateral excursion reduced ranges of motion.

A higher evaluation of 20 percent is not warranted because the evidence

Does not show inter-incisal movement between 21 and 30 mm

§ 4.150 Schedule of ratings—dental and oral conditions.

9905 Temporomandibular articulation, limited motion of:

Inter-incisal range:

0 to 10 mm 40

11 to 20 mm 30

21 to 30 mm 20

31 to 40 mm 10

Range of lateral excursion:

0 to 4 mm 10

Note—Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion

My question:

In reading the NOTE part above shouldn’t the veteran be compensated for both?

10 percent for limited inter-incisal movement between 31 and 40 mm,

AND

10 percent for lateral excursion between 0 and 4 mm.

I feel that the decision maker has combined the evidence of

limited inter-incisal movement and limited lateral excursion

together - thus only allowing for one ten percent evaluation.

The decision maker has stated in the rating decision,

"An evaluation of 10 percent is granted, whenever there is indication of

limited inter-incisal movement between 31 and 40 mm,

or lateral excursion between 0 and 4 mm."

I do not understand the Schedule to be saying that the rating is

limited to either one OR the other.

Thanks for your help, guidance and opinions.

carlie

[LarryJ]

Time for my Welbutrin, Tylenol #3, and that other stuff. I gotta eat someting furst. Later, darlin'!

[carlie]

I feel this BVA decision shows support

for my contention

that the claim and evidence warrant

two separate 10 percent ratings.

carlie

From a BVA Decision:

http://www.va.gov/vetapp08/files4/0829011.txt

Schedular Criteria

Under Diagnostic Code 9905,

limited motion of the temporal mandibular articulation warrants

a minimum rating of 10 percent where there is a maximum of

40 mm of inter-incisal range of motion.

Lateral excursion of 0 to 4 millimeters

also warrants a 10 percent rating.

A 20 percent rating is warranted where there is

21 to 30 mm of inter-incisal range of motion.

A 30 percent rating is assigned where there is 11

to 20 mm of inter-incisal range of motion.

A 40 percent rating is warranted where there is 0 to 10 mm of inter-

incisal range of motion.

38 C.F.R. § 4.150, Diagnostic Code 9905.

[LarryJ]

You did see my note on Maxillary non-union, also, yae?

[Bill (USAF Retired)]

"Sadly, though, DVA made a policy decision not to compensate both inter-incisal movement and limited lateral excursion."

Bill, can you show me the policy decision on this?

Larry,

It doesn't say "policy" on it, but it's there in the note.

Note—Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion

By putting this into 38 C.F.R. Part 4 and making it imperative ("shall not"), VA has promulgated a policy against combining ratings for limited inter-incisal movement and limited lateral excursion.

Some tinnitus sufferers have filed appeals on the "flat rate 10%" for that condition. No success, since VA laid out the going rate in the Schedule.

Bill

[carlie]

Larry,

I read your post on DC 9916 and I feel he would do best

in sticking with the DC that VA has already rated under

(9905).

If VA were to change the DC to 9916 I feel he would only

be rated as Moderate displacement ................................. 10.

Do you still agree that under 9905 his evidence would warrany

two - 10 percent ratings ?

carlie

[carlie]

Bill,

DC 9905 provides a rating percentage for each type of LOM

in this DC.

carlie

Larry,

It doesn't say "policy" on it, but it's there in the note.

Note—Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion

By putting this into 38 C.F.R. Part 4 and making it imperative ("shall not"), VA has promulgated a policy against combining ratings for limited inter-incisal movement and limited lateral excursion.

Some tinnitus sufferers have filed appeals on the "flat rate 10%" for that condition. No success, since VA laid out the going rate in the Schedule.

Bill