I am considering filing a CUE claim to increase my original TMJ rating percentage from 10% to 20%. I am asking for public feedback and advice. If this looks promising, I am considering whether or not to involve a lawyer. Thank you in advance for responding!
Below, I refer to a very interesting BVA case from earlier this year, my C&P dental exam and radiology, and my award letter.
Although the April 2006 VA x-ray demonstrated findings of arthritis, this x-ray did not demonstrate arthritis involvement of 2 or more major joints to warrant a separate evaluation under Diagnostic Code 5003. However, the July 5, 2007, VA examination noted flexion from zero to 120 degrees with pain from 30 to 96 degrees. In other words, factoring in pain, the Veteran had flexion limited to 30 degrees. See Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (noting that under 38 C.F.R. § 4.59, painful motion is considered limited motion even though range of motion is possible beyond the point when pain sets in). In other words, beginning July 5, 2007, a separate 20 percent disability rating is warranted under Diagnostic Code 5260.
1997 C&P: Oral surgeon
Subjective: Present complaints: He has headaches, difficulty chewing, limited opening, and when he tries to open fully, he experiences pain and loud clicking and popping.
Objective: The patient opens to 29 mm, experiences a loud click, and then can open to 42 mm. He responds to pain and discomfort on opening beyond 29 mm. His lateral excursive movements are restricted.
1997 C&P: Radiologist (Arthrogram was performed)
Initial videofluoroscopy on the right side demonstrates that the patient is unable to fully open the jaw unless mechanically doing it with his hand and thus capturing. After the administration of the contrast, he was able to fully capture and translate. Identation anteriorly of the inferior recess which is filled with contrast is consistent with the anterior dislocation of the meniscus.
My 2000 Award Letter
BVA decision of (March 99) granted service connection for internal derangement of the right temporomandibular joint. The purpose of this rating is to implement that decision. The veteran was examined on (December 97) and was found to have an internal derangement of the right temporomandibular joint secondary to the removal of the third molars in 1994. He had headaches, difficulty chewing, limited opening, and a loud clicking and popping on attempts to open fully. He was found to open to 29 mm, experience a loud click, and then go on to open to 42 mm. He responds to pain and discomfort on opening beyond 29 mm. His lateral excursive movements are restricted 6 mm to the left and 7 mm to the right.
Service connection for internal derangement of the right temporomandibular joint has been established as directly related to military service. This condition is evaluated as 10 percent disabling from (April 1995).
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. A higher evaluation of 20 percent is not warranted unless there is limited inter-incisal movement between 21 and 30 mm. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.
Question
Vync
I am considering filing a CUE claim to increase my original TMJ rating percentage from 10% to 20%. I am asking for public feedback and advice. If this looks promising, I am considering whether or not to involve a lawyer. Thank you in advance for responding!
Below, I refer to a very interesting BVA case from earlier this year, my C&P dental exam and radiology, and my award letter.
The Veteran in the BVA case
Problem: Knee
Rating Schedule: Musculoskeletal System (http://www.benefits....ART4/S4_71a.DOC)
ROM: 120 degrees (0% rating)
ROM where pain begins: 30 degrees (20% rating = Flexion limited to 30 degrees)
The Veteran had full ROM, but was awarded based on where painful motion began.
Me
Problem: TMJ
Rating schedule: Dental and Oral Conditions (http://www.benefits....ART4/S4_150.DOC)
ROM: 42 mm (0% rating)
ROM where pain begins: 29 mm (20% rating = 20-29mm ROM)
1994 - Army extracted all third molars and dislocated my jaw
1995 - Left the service and filed a claim
1997 - C&P exam and arthrogram which showed anterior dislocation of right TMJ
2000 - Awarded 10% effective 1995, but 'minimum rating' granted when ROM is not rateable, instead of rating at 29 mm where painful motion begins.
2010 - Awarded TMJ increase to 20% and ratings secondary to it (migraines, GERD due to meds, etc...)
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