Vilfranc: TMJ, Diagnostic Code 9905 and Section 4.59

Vilfranco v. McDonald, Case Number 15-0904, decided January 5, 2017 involves a claim for a higher rating for TMJ.

The veteran was service connected and rated 10% for TMJ.  The veteran argued she deserved a 10% rating for both sides of her jaw.  Her argument took two approaches.  First, she argued 38 CFR Section 4.59, which recognizes painful motion as productive of disability and at least a minimum rating, allows two ratings because it operates to require the VA to assign a minimum rating for each joint.  The Court noted, however, that Section “4.59 is meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint o reach a compensable level” and that “it is not applicable where, as here, the claimant already has a compensable level of limitation of motion.”  Id. at *6.

Second, she argued that under DC 9905 she deserves a separate rating for each joint.  The Court decided DC 9905 is ambiguous as it “does not answer the question posed by Ms. Vilfranc, which is whether dysfunction in both temporomandibular joints constitutes separate disabilities, such that separate disability ratings must be assigned.”  Id. at *8.  However, the Court also found the VA’s position was entitled to deference as it not plainly erroneous or inconsistent with the language of the regulation.  The Court accepted the VA’s argument that the TMJ operates as a single unit and noted that the inter-incisal range is measured once in the center of the mouth.  The Court noted the VA has not appeared to previously interpret DC 9905 in published documents and that the interpretation appears to first be raised in his brief, but that did not dissuade the Court from its finding.

A concurring opinion by Judge Greenberg agrees with the result but argues the case did not necessitate a panel opinion.  The argument appears to be that the issue was realitvely simple, a single judge would have more quickly made a decision, and “[a] timely appeal to the Federal Circuit is the preferred course of review of a single Judge disposition which I believe Congress envisioned.”  Id. at *11.

I think ultimately this case involved regulatory interpretations and reiterated that the Courts are going to largely defer to the VA’s interpretation unless this is some factor to suggest the proferred interpretation is not truly the VA’s interpretation.  See generally Hudgens v McDonald, 823 F.3d 630 (Fed. Cir. 2016).  I am most troubled by Judge Greenberg’s apparent preference for single Judge opinions.  While this case would clearly be one that could be reviewed by the Federal Circuit, the Federal Circuit has internal rules strictly limiting the types of VA cases it will hear.  Judge Greenberg’s apparent dislike of single Judge opinions, could leave veteran’s with no meaningful avenue of appeal.

Decision by Senior Judge Hagel joined by Judge Lance, concurrence by Judge Greenberg.