Vilfranc: RATING TMJ
/Vilfranc v. McDonald, docket no. 15-0904 (Jan. 5, 2017)
HELD: The diagnostic code for temporomandibular joint dysfunction (TMJ), 38 C.F.R § 4.150, Diagnostic Code (DC) 9905, allows for “only a single disability rating for limitation of inter-incisal motion.”
SUMMARY: Veteran Mary Vilfranc appealed a Board decision that denied entitlement to a disability rating in excess of 10% for TMJ, arguing that she was entitled to separate disability ratings for each joint.
The Secretary argued that Ms. Vilfranc was not entitled to an additional rating because she had not shown that she has more than one distinct disability. The Secretary also argued that DC 9905 supports the assignment of a single rating because the temporomandibular joints operate as a single unit.
In her reply brief, Ms. Vilfranc argued that 38 C.F.R. § 4.59 supported the assignment of separate compensable ratings because she experienced pain in each joint.
The Court first discussed the “location and function of the temporomandibular joints,” explaining that the temporomandibular is the combination of three facial bones – the mandible and two temporal bones – that are connected and act in concert, aided by the temporomandibular joint on each side. The Court rejected Ms. Vilfranc’s argument under 38 C.F.R. § 4.59, stating that this regulation provides for a minimum compensable rating for a joint that is actually painful even when evaluating a condition that is not predicated on range of motion – and that she is already in receipt of the minimum compensable rating (10%) for actual limitation of motion. The Court reiterated, “§ 4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint to reach a compensable level; it is not for application where, as here the claimant already has a compensable level of limitation of motion.”
The Court then addressed whether the Secretary’s interpretation of DC 9905 – as limiting a claimant to a single disability rating for TMJ – was reasonable and thus entitled to deference. Relying, on the Federal Circuit’s opinion in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), which dealt with a similar argument regarding the assignment of a single disability rating for tinnitus even when the condition is experienced in both ears, the Court determined that the regulation in question was ambiguous, but that the Secretary’s interpretation was reasonable, even though it was offered for the first time in a brief. The Court concluded that “a claimant is entitled to only a single disability rating for limitation of inter-incisal motion under 38 C.F.R. § 4.150, Diagnostic Code 9905.”
