Citation Nr: 1125586	
Decision Date: 07/07/11    Archive Date: 07/15/11

DOCKET NO.  10-04 140A	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for bruxism.

2.  Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling.  


REPRESENTATION

Appellant represented by:	American Ex-Prisoners of War, Inc.


ATTORNEY FOR THE BOARD

C. C. Dale, Associate Counsel



INTRODUCTION

The Veteran had active duty service from July 1999 to July 2005.  He earned a Combat Action Badge for participation in Operation Iraqi Freedom.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in New York, New York.  The decision denied service connection for bruxism; and granted service connection for PTSD, evaluated as 50 percent disabling, effective May 27, 2008.

The Veteran also appealed a denial of service connection for a traumatic brain injury (TBI).  In a January 2010 decision, the RO granted service connection for TBI.  As this rating action results in a full grant of the benefit sought (i.e. service connection), the claim is no longer on appeal.  

In an October 2010 decision the RO granted a 70 percent rating for PTSD, effective May 27, 2008 with entitlement to a total rating for compensation purposes based on individual unemployability.

This decision grants the maximum rating for PTSD.  Additional compensation would require the grant of special monthly compensation.  The question of the Veteran's entitlement to such benefits is referred to the RO for initial consideration.


FINDINGS OF FACT

1.  Bruxism is related to active service.

2.  The Veteran's PTSD is manifested by total occupational and near total social impairment.  



CONCLUSIONS OF LAW

1.  The criteria for service connection for bruxism have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.303(b) (2010).

2.  The criteria for a 100 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist
	
The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

As the Board is granting the claim for service connection and a total disability rating, the claims are substantiated.  There are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

(i) Service connection for bruxism

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service records reflected that the Veteran complained of bruxism at service separation.  See May 2005 report of medical history.  

A VA dental consultation, in May 2009, showed that the Veteran continued to grind his teeth.  The VA dentist recommended a night guard for treatment.  

The Veteran's mother submitted a January 2010 statement.  She reported that the Veteran had had routine dental care as a child and adolescent, but dental providers did not find bruxism.  

The service treatment records demonstrate bruxism in service.  The VA consultation report demonstrates a current disability.  The lay and medical evidence showing ongoing bruxism is competent and credible.  Caluza; Buchanan.  Thus there appears to be a link between the in-service bruxism and the current disability.

Service connection was denied on the grounds that bruxism was not considered a disability if it only resulted in grinding and wearing down of teeth.  It is true that certain dental conditions are not considered disabilities for VA compensation purposes.  See 38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2010) (providing that dental bone loss due to trauma or disease is compensable, while loss of the alveolar process through periodontal disease is not).  There is no; however, specific regulatory or legislative prohibition on granting service connection for bruxism.   The elements necessary for service connection have been demonstrated.  Accordingly, service connection for bruxism is granted.  38 C.F.R. § 3.303(b).

(ii) Increased initial rating for PTSD

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-6 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a).

When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  See 38 C.F.R. §§ 4.125, 4.130.

PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders.

Under the General Formula a 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.

A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned.  Id. at 443.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness."  Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).

A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  Id.  A GAF score of 41-50 is assigned where there are, "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)."  Id.
A GAF score of 51-60 rating indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Id.

Turning to the evidence, the Veteran initially enrolled in VA medical care in June 2008.  He was afforded a general physical examination.  He reported anxiety attacks and insomnia.  The VA primary care physician requested a psychiatric follow-up.  

The VA psychiatric consultation, dated in June 2008, showed that the Veteran had recently sought counseling for sleep difficulties.  He also believed symptoms including anxiety, social isolation, depression, sleep disturbances had worsened during the past year.  Mental status examination showed normal appearance, proper orientation and speech, and normal thought processes and perception.  The Veteran displayed an anxious, depressed mood.  He was also tearful and tremulous during the examination.  The examiner diagnosed PTSD, general anxiety, and major depression.  He assigned a GAF score of 55.  

In July 2008, the Veteran reported having two panic episodes and marital difficulties.  His symptoms and mental status functioning were similar to those found the previous month.  The examiner made a medication adjustment and recommended continued therapy.  

In August 2008, the Veteran underwent a polytrauma consultation for post TBI status and resulting cognitive disorders.  The examiner believed the cognitive difficulties were compounded by PTSD.  He gave the Veteran a handheld electronic device to aid his short memory.  

The Veteran underwent a November 2008 VA PTSD examination.  The examiner reviewed the claims file and recited the relevant psychiatric history.  The Veteran reported current symptoms of insomnia, intrusive thoughts, irritability, emotional difficulties, impaired concentration, and startle response.  He had no psychiatric problems prior to service.  During service, he had numerous stressors while serving in Iraq.  Since separation, he has primarily been a student.  He currently had occasional panic attacks and impaired concentration that interfered with his studies.  He lived with his wife of over a year and described her as his best friend.  He was concerned about his inability to express emotions to her.  He did not have any close friends or hobbies.  He had panic attacks in social settings and preferred to stay home.  

Mental status examination showed normal appearance and hygiene.  The examiner noted the Veteran was oriented to person, place, and time.  However, he described the Veteran's affect as anxious and his mood as tense and sad.  Communications and speech were normal.  The Veteran reported heavy reliance on a VA issued handheld device to manage schoolwork, due to his memory impairment.  However, the examiner found the Veteran's long term memory to be intact.  The Veteran denied auditory or visual hallucinations, delusions, suicide ideation, and homicide ideation.  The examiner observed the Veteran's anxious appearance throughout the interview, particularly heightened upon discussing his Iraq experiences.      

The examiner diagnosed PTSD with panic attacks.  He characterized the PTSD symptoms as severe.  He also concluded that there was a severe deficit in social functioning with an absence of friends and difficulty expressing emotions.  He believed the Veteran's academic struggles were directly related to PTSD symptoms.  He assigned a GAF score of 40.  

The Veteran participated in a residential PTSD treatment program for approximately six weeks from March 2009 to May 2009.  He planned to initially enter the program in August 2009, but due to an exacerbation of symptoms he started the program earlier.  He complained about sleep disturbances, intrusive thoughts, hypervigilance, moderate irritability, severe depression, severe anxiety, and social isolation.  He denied homicidal or suicidal ideation, but reported occasional visual and auditory hallucinations.  He had been participating in individual psychotherapy on a weekly basis.  

Upon admission, the Veteran demonstrated normal hygiene and communication.  His mood was slightly depressed and his affect was labile.  Thought processes were coherent.  He was oriented to person, place, and time.  He did not demonstrate any current delusions or hallucinations.  

During the inpatient program, the Veteran exhibited improvement in symptoms of depression and anxiety.  He developed greater insight and learned coping skills to manage his depressive and anxiety symptoms.  The program manager believed the Veteran did quite well during residential treatment.  

Following the inpatient program, the Veteran did not return to VA psychotherapy for approximately seven weeks.  He cited mixed feelings about his inpatient treatment, but noted his wife encouraged him to resume counseling.  Following discharge, the Veteran noted that he had volunteered at a VA nursing home and had a positive experience.  The examiner observed a brightened mood by the Veteran while recalling the experience.  

Mental status examination showed a fair mood and normal speech.  The Veteran maintained proper hygiene.  He also showed a full range of affect, including tearful moments.  Thought processes and perception were normal.  The examiner diagnosed PTSD and assigned a GAF score of 55.  He resumed the Veteran's medication and explained that treatment was a process and encouraged him to continue counseling.  

The Veteran had a psychiatric consultation in October 2009.  He continued to have anxiety, but did not have any panic attacks during the past three months.  He attributed it to social isolation.  Mental status was unchanged from July 2009.  The psychiatrist made a medication adjustment.  

The Veteran's treating psychiatrist wrote a December 2009 letter.  She noted the Veteran's PTSD symptoms included disturbing memories, nightmares, increased arousal, hypervigilence, irritability, detachment, panic attacks, self-loathing, and depressed mood.  She considered the Veteran's PTSD to be delayed onset with increasing severity.  

She noted that the Veteran's GAF scores had ranged from 34-58 and was currently 40 with major impairment in social, family relations, educational, and occupational functioning.  She characterized the Veteran's occupational and social impairment due to PTSD symptoms as total.  She noted he required continuous medication and psychotherapy to reduce the likelihood of inpatient treatment.  She considered the Veteran's prognosis was fair and believed he might be able to regain some functioning after long term psychotherapy.  

The Veteran was afforded an updated PTSD examination in June 2010.  He reported continued insomnia, intrusive thoughts, irritability, emotional difficulties, impaired concentration, and startle response.  He was also prone to panic attacks.  He dropped out of college during the spring 2010 semester due to anxiety and depression.  He was having difficulty with his marriage due to his increased anxiety and irritability.  He continued not to have any friends or hobbies as his heightened anxiety and panic attacks were triggered by social activities.  He reported spending most of his time alone worrying about the future.  Mental status examination showed a normal appearance and hygiene.  

The examiner noted that the Veteran was oriented to person, place, and time.  However, he described the Veteran's affect as anxious and his mood as tense and sad.  He noted that the Veteran had severe short term memory impairment.  The Veteran reported that despite relying on his handheld device he still managed to forget things.  However, his long term memory remained intact.  The Veteran denied auditory or visual hallucinations, delusions, and homicide ideation.  However, he admitted to suicidal thoughts, but reported no intent due to his wife.  

The examiner observed anxious behavior throughout the interview, particularly when discussing dropping out of college.  The Veteran became tearful when describing the difficulties with his wife and affirmed constant anxiety and depression.  He reported ritualistic behavior in cleaning his house.  The examiner diagnosed PTSD and noted severe symptoms with little remission.  He commented that due to the severe current symptoms it is unclear whether the Veteran would be able to return to school or seek future employment.  

He assigned a GAF score of 35.  He noted the Veteran's symptoms had increased since the last examination in November 2008.  However, he commented that the Veteran had continued strengths of a supportive spouse and utilization of mental health resources.  

Since the effective date of service connection in May 2008, the Veteran has not engaged in employment and dropped out of college due to PTSD symptoms.  He has shown near total impairment in social functioning with his only reported social contact being his wife.  Although he has demonstrated isolated occasions of improvement, the overwhelming evidence points to serious, or worse, impairment in functioning.  The majority of the GAF scores contemplate an inability to work and no friends. 

The Board finds that the Veteran's symptoms have approximated total occupational impairment and near total social impairment for the duration of the claim.  As such, the Veteran's PTSD symptoms more closely approximate the 100 percent rating criteria.  Mauerhan.  An initial rating of 100 percent for service connected PTSD is granted.  38 C.F.R. §§ 4.7, 4.21, 4.130, DC 9411.          


ORDER

Service connection for bruxism is granted.    

A 100 percent initial rating for PTSD is granted, effective May 27, 2008.  



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs