RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD-2013-00198
BRANCH OF SERVICE:  MARINE CORPS 	 BOARD DATE:  20140910
SEPARATION DATE:  20020930

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-2 (1800/Basic Tank and Assault Amphibious Vehicle Crewman) medically separated for locking jaw open.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was placed on light duty and referred for a Medical Evaluation Board (MEB).  The oral conditions, characterized as “oral and maxillofacial surgery (OMS)” and “temporomandibular dysfunction/joint (TMD/J),” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB (IPEB) adjudicated “locking jaw open” as unfitting, rated at 10% with likely application of Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  There were no other conditions identified.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Do to the injuries I sustained in boot camp I have had 3 surgeries since I have been out.  From June of 2002 I have had migraine headaches, and as of Dec 2011 “they” the VA have added a rating to my service connected injury.  Evidence attached and rating attached.”

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting locking jaw open condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:  

Service IPEB – Dated 20020807	VA – based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Locking Jaw Open	9999-9905	10%	Locking Jaw with TMJ Dysfunction, Chronic	9999-9905	10%	*20020815	
No Additional MEB/PEB Entries	Other x 1	*20020815	
Rating:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030305 (most proximate to date of separation).  A subsequent VARD dated 20040107 which was based on a 20031211 exam (14.5 months after DOS) raised his rating to 20%.
* VA exam date used above is from proposed rating decision (p.199) in which evidence was Service medical records (SMR) for the period 20020102.

ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Locking Jaw Open.  The CI entered active duty on 25 February 2002 and was evaluated in the dental clinic 3 days later.  The note indicated that further evaluation was required for his wisdom teeth and for possible temporomandibular joint (TMJ) dysfunction.  Two weeks later on 8 March 2002, the CI had his wisdom teeth extracted and it was noted that his mandible (lower jaw) locked four to five times during the appointment with easy reduction.  The first time this occurred was at a dental hygiene appointment (the only one in the record is the one 3 days after accession.)  Over the course of the next few months, the CI continued to experience locking while chewing, yawning, coughing and sounding off.  His condition was initially treated with an arch bar and his jaws were wired shut for a month without resolution of his problem.  It was noted that at times, the CI could not reduce his jaw himself and required manual reduction.  Surgery was determined to be the definitive treatment.  However, this was postponed due to a knee problem and the CI then was referred to PEB to seek care in the civilian sector with a possible re-enlistment 6-12 months in the future.  None of the records in evidence indicated that there was a limitation in the jaw movement; only locking of the jaw in the open position was documented.  The narrative summary (NARSUM) date 3 July 2002 noted the above history.  It also noted that the condition appeared to have existed for some time due to the frequency of the “lock jaw” although the CI stated that the first occurrence was at the dental hygiene appointment as noted above.  On CT scan, the left side of the jaw was shown to be more problematic than the right.  The TMJ movement was not recorded.  The MEB determined that the TMD did not meet retention standards.  The PEB determined that the “jaw locking open” condition was unfitting and recommended a 10% rating using the VA code 9999-9905, (analogous to limitation in motion for the temporomandibular joint).

No VA compensation and pension examination was present in the records in evidence.  However, the VA also rated the CI at 10% using the 9999-9905 code and continued this rating until it was raised to 20% effective 21 August 2003 based on the 11 December 2003 examination.  The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA used the same analogous code, 9999-9905, for a 10% rating.  Review of the records in evidence does not reveal any limitation in the motion of the jaw other than the intermittent locking in the open position which the CI usually could reduce himself.  The Board found no basis upon which to support a higher rating at the time of separation.  It noted that the CI concurred with both the MEB and PEB adjudications and that his contention referenced the progression of the condition rather than positing that the adjudication at separation was incorrect.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the “locking jaw open” condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the “locking jaw open” condition and IAW VASRD §4.150, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130415, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 15 Dec 14

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC    
- XXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXX, former USMC