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November 26, 2021

Single Judge Application; In Saunders, the Federal Circuit instead held that pain alone can rise to the level of a compensable disability if it causes a functional impairment of earning capacity, Saunders, 886 F.3d at 1364-66; And in Wait v. Wilkie, this Court described the requirements necessary to show pain that reaches the level of functional impairment of earning capacity, Wait v. Wilkie, 33 Vet.App. 8, 16-17 (2020); First, the “pain must amount to a functional impairment—i.e., diminish the body’s ability to function.” Wait v. Wilkie, 33 Vet.App. 8, 16-17 (2020); Second, “VA must undertake an individualized assessment, which includes a preliminary evaluation of the degree of impairment. In other words, although pain alone can serve as the functional impairment, the mere existence of pain is not enough to constitute a disability. It must impair earning capacity.”Wait v. Wilkie, 33 Vet.App. 8, 16-17 (2020); The Court’s holding in Wait firmly rejected appellant’s contention. Adopting it would diverge from the very purpose of veterans’ compensation: compensating veterans for reductions in earning capacity, Wait v. Wilkie, 33 Vet.App. 8, 17 (2020);

Filed under: Uncategorized — Tags: — veteranclaims @ 1:48 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1121
LAWRENCE FAUSTO WILSON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
LAURER, Judge: United States Army veteran Lawrence Fausto Wilson appeals, through
counsel, a January 8, 2020, Board of Veterans’ Appeals (Board) decision denying service
connection for temporomandibular joint disability (TMJ), to include disability manifest by pain
located on the masseters.
Appellant argues that the Board clearly erred in relying on a March 2019 VA compensation
and pension (C&P) exam to conclude that he did not have a current TMJ disability. 1 He contends
that the examiner did not provide an adequate rationale for why his pain did not amount to
functional impairment.2 Because the examiner provided an adequate rationale for his opinion and
because his opinion sufficiently informed the Board, the Court finds no error in the Board’s finding
that the March 2019 exam was adequate.
Appellant also maintains that the Board failed to consider evidence of functional
impairment.3 But the Board considered all material evidence of record and the Court thus finds no
error.
1 Appellant’s Brief (Br.) a t 6-11.
2 Appellant’s Br. a t 7-8.
3 Appellant’s Br. at 9.
2
Finally, appellant claims that the Board failed to provide adequate reasons or bases for
relying on the March 2019 examiner’s opinion and discounting favorable evidence.4 The Court
finds that the Board provided adequate reasons or bases for its finding that the “evidence of record
does not support a finding that [functional] impairment [of earning capacity] exists” and for thus
denying service connection for TMJ.5
The Court lacks jurisdiction to address appellant’s appeal for a chronic headache disability,
characterized as chronic cephalgia, because the claim is not a part of the Board decision here. This
is because VA separately adjudicated chronic cephalgia (headaches) in a March 2019 rating
decision.6 Thus, the Court dismisses that part of the appeal.
I. ANALYSIS
When VA obtains a medical opinion, it must ensure that the opinion is adequate. 7 Medical
opinions are adequate when they consider a veteran’s prior medical history and “describe [] the
disability in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully
informed one.’” 8 Examiners need not provide reasons or bases for their conclusions.9 But, as
“nothing more or less than expert witnesses,”10 their opinions must include enough facts or data to
inform the Board of their judgment and the essential rationale for their opinion.11
Like other findings of fact, the Court reviews the Board’s determination on the adequacy
of a medical opinion under the “clearly erroneous” standard. 12 “A factual finding ‘is “clearly
4 Appellant’s Br. a t 8, 10.
5 Record (R.) at 9.
6 R. at 6-7; see R. at 985-95. The RO adjudicated the TMJ claim on appeal in an April 2019 rating decision.
R. at 47-58.
7 Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also 38 C.F.R. § 4.2 (2021).
8 D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam) (quoting Ardison v. Brown, 6 Vet.App. 405, 407
(1994)).
9 Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must rest on correct facts
and reasoned medical judgment so as [to] inform the Board on a medical question and facilitate the Board’s
consideration and weighing of the report against any contrary reports.”).
10 Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008).
11 Miller v. Wilkie, 32 Vet.App. 249, 254 (2020) (quoting Monzingo v. Shinseki, 26 Vet.App. 97, 105, 107
(2012) (per curiam)).
12 D’Aries, 22 Vet.App. at 104.
3
erroneous” when, although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.’” 13
For all findings on material issues of fact and law, the Board must support its decision with
adequate reasons or bases that allow a claimant to understand the precise reasons for the Board’s
decision and facilitate this Court’s review.14 To satisfy this requirement, the Board must account
for evidence it finds persuasive or unpersuasive, analyze the credibility and probative value of
relevant evidence, and provide reasons for rejecting any evidence favorable to appellant.15 If the
Board fails to do so, remand is appropriate.16
A. March 2019 C&P Exam
Appellant argues that the Board erred in relying on a March 2019 C&P exam.17 The VA
examiner opined that while appellant experienced pain in the left TMJ, his pain did not cause
functional loss.18 Appellant disagrees with the examiner’s assessment and asserts that the pain he
experiences when using his mouth “amounts to diminished functional ability per Saunders.”19 As
appellant understands it, any pain can constitute a disability for VA purposes if it at all diminishes
the body’s ability to function, and the examiner must consider his pain as such.20 But appellant
misunderstands the law. In Saunders, the Federal Circuit instead held that pain alone can rise to the level of a compensable disability if it causes a functional impairment of earning capacity. 21
And in Wait v. Wilkie, this Court described the requirements necessary to show pain that reaches the level of functional impairment of earning capacity. 22 First, the “pain must amount to a
functional impairment—i.e., diminish the body’s ability to function.” 23 Second, “VA must
13 Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 33 U.S. 364,
395 (1948)).
14 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
15 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
16 Tucker v. West, 11 Vet.App. 369, 374 (1998).
17 Appella nt’s Br. a t 5-10.
18 R. at 68-72.
19 Appella nt’s Br. a t 7 (citing Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018)).
20 Id. at 5-10.
21 Saunders, 886 F.3d at 1364-66.
22 Wait v. Wilkie, 33 Vet.App. 8, 16-17 (2020).
23 Id.
4
undertake an individualized assessment, which includes a preliminary evaluation of the degree of impairment. In other words, although pain alone can serve as the functional impairment, the mere existence of pain is not enough to constitute a disability. It must impair earning capacity.”24 The
Court’s holding in Wait firmly rejected appellant’s contention. Adopting it would diverge from the very purpose of veterans’ compensation: compensating veterans for reductions in earning capacity.25
The Board did not clearly err in finding the March 2019 exam adequate. The VA examiner
considered appellant’s medical history, his VA claims file, lay statements concerning TMJ pain,
and his in-service records, and provided an adequate rationale for finding that appellant’s pain did
not have any functional impact.26
The Board’s job is to evaluate a claim based on the evidence of record.27 And it is the duty
of the VA adjudicators, not medical examiners, to apply the appropriate legal standard.28 This duty
requires the Board to assess whether the evidence establishes that appellant experiences functional
loss or impairment of earning capacity.29 Examiners need not state their reasons or bases, but they
must instead provide enough information to allow the Board to come to a fully informed decision.30
The VA examiner did so here. The examiner described appellant’s symptoms and his statements
that he experienced a “dull ache on both sides []on masseter area . . . below the TM joints and
while [he] opens the mouth wide to chew a burger.”31 The examiner noted that appellant reported
pain in the left TMJ joint in August 1992 and that his records included a notation of trismus in
November 1990. 32 The examiner tested appellant’s initial range of motion and functional
limitations, and found that while appellant reported pain in the left TMJ, the pain did not cause
functional impairment or limit his ability to work.33 This opinion also aligns with appellant’s own
24 Id.
25 Id. at 17.
26 R. at 68-73; Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 302.
27 Caluza, 7 Vet.App. at 506.
28 Moore v. Nicholson, 21 Vet.App. 211, 218 (2007).
29 Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011).
30 Acevedo, 25 Vet.App. at 293; Monzingo, 26 Vet.App. at 107.
31 R. at 69.
32 R. at 68.
33 R. at 69-72.
5
statement that his condition did not impact his ability to work, and the opinion of a March 2014
C&P examiner who also opined that his condition did not reduce his earning capacity.34
Finally, appellant says that the Board should have obtained an adequate medical opinion
to determine whether his diagnosed pain in the left TMJ when opening his mouth constitutes a
“disability” under the law. The March 2019 examiner did just that. He opined that appellant’s pain
did not reduce his earning capacity and thus did not constitute an impairment.35 Thus, the Board
properly relied on the examiner’s opinion to find that appellant did not have a disability for VA
purposes because his pain did not reduce his earning capacity and does not meet the definition of
a disability under Wait.
Appellant does not suggest that the examiner failed to consider evidence that his pain
limited his ability to work.36 The Court finds that the Board did not clearly err in relying on the
March C&P examiner’s opinion because the examiner described appellant’s disability in sufficient
detail and provided the essential rationale for concluding that his pain did not limit his functional
ability.37
B. Reasons or Bases
Appellant argues that the Board failed to consider material evidence of functional loss. 38
He posits that the evidence shows that he “suffers from pain ‘when [he] opens [his mouth] above
45[ ]mm on the left [side TMJ],’” and that if the Board considered this evidence it would have
found functional impairment under Saunders and that the evidence established in-service
incurrence.39 But appellant once again misunderstands the law.
As explained, the holding in Saunders does not hold that the mere presence of pain is
enough to establish functional impairment that rises to the level of a compensable disability.40
Instead, the pain must be such that it causes a functional impairment that reduces earning
34 R. at 69-73; R. at 2179-81.
35 Wait, 33 Vet.App. at 16; R. at 72.
36 See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d per curiam, 232 F.3d 908 (Fed. Cir.
2000) (table) (holding that the appellant has the burden of proving error in the Board’s decision).
37 R. at 68-73; D’Aries, 22 Vet.App. at 104; see Miller, 32 Vet.App. at 254.
38 Appella nt’s Br. a t 8-9.
39 Id. (citing R. at 72).
40 Saunders, 886 F.3d at 1365.
6
capacity.41 The Board specifically considered whether appellant’s pain met the standard required
in Saunders and found that it did not. 42 The Board noted the March 2019 C&P exam, which
addressed appellant’s pain when opening his mouth past 45 mm.43 The Board also noted
appellant’s reports of pain since service44 and his reports of pain to his personal chiropractor.45
The Board considered this evidence given appellant’s own report that his condition did not impact
his ability to work, and the opinions of two C&P examiners who also opined that his condition did
not reduce his earning capacity.46 What’s more, while appellant’s private chiropractor found that
he may have a TMJ disability, nowhere does she opine that his disability affected his ability to
work.47 Importantly, the Board discussed this favorable evidence but discounted it because, while
the chiropractor’s “letter suggests [appellant] has a current disability, she explicitly recommended
follow up by a qualified clinician for confirmation, [and] [u]pon examination, two VA dentists
came to the opposite conclusion.”48 The Court finds that the Board did not clearly err because it
considered all material evidence in reaching its decision.
Furthermore, as the Secretary notes, even if the Board failed to consider evidence of pain
from opening the mouth more than 45 mm, this would still exceed the maximum interincisal range
of 35 mm for a compensable rating for limited motion of the TMJ.49 Indeed, even if the Board
viewed this evidence in isolation, it is not favorable to appellant, as a TMJ disability for limited
motion is compensable only when a claimant cannot open his or her mouth at least 35 mm.50 So
under Saunders, this evidence only underscores that appellant’s pain does not rise to the level of
producing functional impairment of earning capacity.51 Because pain is evaluated based on rating
41 Saunders, 886 F.3d at 1364; Wait, 33 Vet.App. at 17.
42 R. at 8-9.
43 R. at 8; R. at 68-73.
44 R. at 7 (“[a ppellant] contends he has had pain since having his wisdom teeth removed in service . . . [and
he] further reported pain when chewing a nd opening his ja w wide”).
45 R. at 8; R. at 1107.
46 R. at 9; R. at 69-73; R. at 2179-81.
47 R. at 1105-07.
48 R. at 9; R. at 1107.
49 Secreta ry’s Br. a t 11-13 (first citing 38 C.F.R. § 4.150; and then quoting Wait, 33 Vet.App. at 17);
Saunders, 886 F.3d at 1364.
50 38 C.F.R. § 4.150, Diagnostic Code 9905 (2021).
51 See Saunders, 886 F.3d at 1364; Wait, 33 Vet.App. at 17.
7
schedules to establish functional impairment for a nondiagnosed condition, a remand would still
lead to the same result: denial by the Board for lack of a current TMJ disability. Thus, appellant
has not met his burden of showing prejudicial error.52
Finally, appellant argues that the Board did not provide adequate reasons or bases for its
determination that “evidence of record does not support a finding that [functional] impairment [of
earning capacity] exists or had existed during the pendency of the claim.” 53 This part of his
argument is twofold. First, he contends that the Board failed to provide adequate reasons or bases
for relying on the March 2019 exam.54 Next, he maintains that the Board did not provide adequate
reasons or bases for rejecting evidence favorable to his claim.55 Appellant’s arguments fall short
on both counts.
Weighing evidence is the Board’s responsibility.56 As the finder of fact, the Board has wide
latitude and discretion to evaluate the evidence, and how it assigns probative weight, determines
credibility, interprets the facts, and reaches conclusions are subject to review under the deferential
“clearly erroneous” standard.57 Under this standard of review, the Court must affirm the findings
of the Board so long as there is plausible support for them in the record, which there is here.58 As
discussed, the Board did not clearly err in finding the March 2019 exam adequate.
The Board thoroughly discussed appellant’s medical history and the details of the March
2019 C&P exam, March 2014 C&P exam, and the November 2018 letter from appellant’s
chiropractor in explaining why it found that appellant did not have a current diagnosis of a TMJ
disability manifest by pain. 59 It weighed the favorable evidence from appellant’s chiropractor
52 See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing that an error is ha rmful
normally falls upon the party attacking the a gency’s determination.”); see also Hilkert, 12 Vet.App. at 151 (holding
that the appellant has the burden of proving error).
53 Appella nt’s Br. a t 8-10; R. at 9.
54 Appella nt’s Br. a t 8-9.
55 Id. at 10.
56 D’Aries, 22 Vet.App. at 107 (holding that it is the responsibility of the Board to assess the credibility and
weight to be given to evidence); Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (holding that it is the
responsibility of the Board to assess the probative weight of the evidence); Owens v. Brown, 7 Vet.App. 429, 433
(1995) (holding that it is the responsibility of the Board, not the Court, to assess the credibility and weight to be given
to the evidence).
57 Id.
58 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
59 R. at 7-10.
8
against the opinions of both VA examiners and found that there was a “lack of objective evidence
on examination or in the record” supporting appellant’s contention of a current TMJ disability.60
It also found that by appellant’s own report, and the opinions of both examiners, appellant’s pain
did not impact his ability to work.61 The Board explained that even with appellant’s reported and
documented pain, “there must be some accepted evidence of limited function to rise to the level of
disability.”62
Thus, appellant has not met his burden of showing prejudicial error, and the Court finds
that the Board supported its decision with adequate reasons or bases because there is plausible
support in the record for the Board’s findings.63 The Court also finds that the Board provided
adequate reasons or bases for rejecting evidence favorable to appellant’s claim.64
C. Headache Disability (Chronic Cephalgia)
Appellant claims that the Board clearly erred by failing to consider whether his headache
disability (classified as chronic cephalgia) related to service.65 Appellant is correct that the Board
decision on appeal did not consider whether his chronic headaches related to service, but that is
because his headache disability was the subject of a separate rating decision that is not before the
Court at this time. A review of the procedural history helps distinguish the separate claim streams.
Appellant originally applied for disability compensation in December 2018. 66 His
application listed several disabilities for which he sought compensation, including chronic
cephalgia (headaches) and TMJ.67 In March 2019, the VA regional office (RO) issued a rating
decision denying service connection for several disabilities, including chronic cephalgia, and
deferred a decision on entitlement to compensation for TMJ with headaches.68 Appellant appealed
60 R. at 9; D’Aries, 22 Vet.App. at 107; Washington, 19 Vet.App. at 368; Owens, 7 Vet.App. at 433.
61 R. at 9; see 38 U.S.C. § 7261(a)(4).
62 R. at 9-10; Saunders, 886 F.3d at 1364; Wait, 33 Vet.App. at 17.
63 See Allday, 7 Vet.App. at 527 (1995); see Hilkert, 12 Vet.App. at 151 (holding that appellant bears the
burden of proving error on appeal); see also Sanders, 556 U.S. at 409 (“[T]he burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination.”).
64 Id.
65 Appella nt’s Br. a t 11-14.
66 R. at 1108-11.
67 Id.
68 R. at 986-95.
9
the rating decision denying service connection for chronic cephalgia on March 26, 2019. 69
Appellant specifically stated that he wished to appeal chronic cephalgia.70
In a separate rating decision from April 23, 2019, VA reopened and denied service
connection for a TMJ disability with headaches.71 Appellant appealed that decision on May 18,
2019.72 The appeal of the April 2019 rating decision is the subject of the Board decision on
appeal.73
While appellant argues that the Board erred in failing to address headaches in the decision
on appeal, he fails to recognize that the matter of entitlement to service connection for headaches
is part of a separate claim stream.74 As the Secretary notes, the Board reviewed the procedural
history and recharacterized appellant’s claim on appeal as TMJ, to include disability manifest by
pain located on the masseters, to provide clarity to appellant. 75 Appellant does not point to any
evidence that he suffers from headaches associated with his TMJ pain that would require his TMJ
claim to encompass headaches.76 Appellant fails to meet his burden of showing any error when the
Board recharacterized his claim to properly reflect symptoms associated with his TMJ.77 He also
shows no error where the Board did not address a separate claim stream for headaches that
stemmed from a separate rating decision, the appeal of which was not before the Board.
If appellant wishes to pursue his claim for headaches further, his recourse lies with seeking
review of the March 2019 rating decision denying service connection for headaches.
Because the matter of entitlement to service connection for headaches is part of a separate
claims stream, the Board did not err in not addressing it. This Court lacks jurisdiction to entertain
arguments pertaining to that claim.78
69 R. at 409-10.
70 R. at 410.
71 R. at 47-58; see Fagre v. Peake, 22 Vet.App. 188, 191 n.4 (2008) (noting that the Secretary is free to
“issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a veteran”).
72 R. at 41-42 (VA Form 10182 specifically disa greeing with the “4/23/19” decision).
73 See R. at 6.
74 Appellant’s Br. at 11-14; See R. at 409-10, 986-95.
75 Secretary’s Br. at 19-22; R. at 6-7.
76 Appellant’s Br. 6-14; R. at 6-7; see Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009).
77 R. at 6-7; see R. at 73.
78 See 38 U.S.C. § 7252; Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (The Court’s jurisdiction is
“premised on a nd defined by the Board’s decision concerning the matter being appealed); King v. Nicholson, 19
10
II. CONCLUSION
For these reasons, the Court AFFIRMS the Board’s January 8, 2020, decision denying
service connection for TMJ, to include disability manifest by pain located on the masseters.
DATED: July 29, 2021
Copies to:
Jihwang Yeo, Esq.
VA General Counsel (027)
Vet.App. 406, 409 (2006) (“[O]ur jurisdiction is limited to reviewing decisions of the Board.”).

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