Painful Motion Vs. Limited Motion

[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...)

The BVA case (definitely look at the highlighted text)

http://www4.va.gov/v...es1/1001405.txt

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.

[john999]

If it means ten years of retro it is something to think about and research.

[rakkwarrior]

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...)

Title 38 C.F.R. §4.150-Schedule for Rating Dental conditions-DC9905 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.

The Rating Criteria hasn't been revised or amended since the Federal Registry notice at 59 FR 2530, Jan. 18, 1994. This means the criteria can be applied longitudinally across your period of evaluation. However, the painful motion criteria generally applies to TMJ has not yet been studied for application of Deluca Criteria where, "limitation of motion is determined after consideration of functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R. §§ 4.40, 4.45.

Title 38 C.F.R. §4.40 states, "Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like."

Title 38 C.F.R. §4.45 primarily discusses the joints and describes the criterion upon which consideration will be given. Interestingly the VA Examination Worksheet does not specifically provide for Deluca Criteria. http://www.vba.va.gov/bln/21/Benefits/exams/disexm12.pdf

It would be an interesting Case to argue before the BVA or CAVC.