Citation Nr: 1752270 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-09 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for bruxism. 2. Entitlement to an evaluation in excess of 70 percent for major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel INTRODUCTION The Veteran had active duty service from September 1964 to May 1968, from June 1970 to April 1972, and from March 1973 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2012 and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in April 2013. A transcript of that hearing has been associated with the claims file. In November 2014, the Board remanded the claims for further development. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a July 2015 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran's depressive disorder from 50 percent to 70 percent effective from April 16, 2012. Additionally, the July 2015 rating decision also implemented the Board's November 2014 decision restoring the Veteran's disability evaluation for his bruxism to 10 percent. However, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues remain on appeal. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's lost teeth and the loss of masticatory surface have been restored and/or could be restored by suitable prosthesis. 2. The Veteran's major depressive disorder has been manifested by total occupational and social impairment. 3. The Veteran's major depressive disorder has been assigned a 100 percent evaluation; however, he does not have an additional disability or disabilities independently ratable at 60 percent or more that are different anatomical segments or bodily systems. He is not permanently housebound by reason of a service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bruxism have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.150, Diagnostic Codes 9999-9913 (2017). 2. The criteria for an evaluation of 100 percent for service-connected major depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, Diagnostic Code 9434 (2017). 3. The criteria for SMC at the housebound rate are not met. 38 U.S.C.A. § 1114 (s) (West 2002 & Supp. 2013); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability 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 rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). I. Bruxism The Veteran's bruxism has been evaluated under 38 C.F.R. § 4.150, Diagnostic Code 9999-9913. Hyphenated diagnostic codes, including a diagnostic code ending in the digits "99," are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. 38 C.F.R. § 4.27. Here, the Veteran's bruxism is rated by analogy using the criteria for loss of teeth due to loss of substance of body of maxilla or mandible without loss of continuity under Diagnostic Code 9913. Under Diagnostic Code 9913, where the lost masticatory surface cannot be restored by a "suitable prosthesis," a maximum 40 percent disability rating is warranted for the loss of all teeth, a 30 percent rating is warranted for the loss of all upper or lower teeth, a 20 percent rating is warranted for the loss of all upper and lower posterior or anterior teeth, and a 10 percent rating is warranted for the loss of all upper anterior teeth, all lower anterior teeth, or all upper and lower teeth on one side. Where the loss of masticatory surface can be restored by suitable prosthesis, a noncompensable rating is warranted. In this case, a 10 percent rating was assigned for the Veteran's bruxism in July 2010, based on an April 2010 VA examination, which reported that the Veteran's missing teeth could not be restored by a suitable prosthesis. Subsequently, the Veteran had all of his teeth pulled due to his bruxism. The record then appeared to indicate that a suitable prosthesis could be made for those missing teeth. Therefore, the AOJ reduced the Veteran's evaluation for bruxism to noncompensable in a January 2012 rating decision. However, the Board restored the Veteran's 10 percent evaluation in its November 2014 decision, as it found that the record was unclear as to whether or not the Veteran's condition had improved. A July 2015 rating decision reflected this restoration. However, the issue of entitlement to an increased evaluation for the bruxism is still on appeal. After a review of the evidence of record, the Board finds that an increased evaluation for the Veteran's bruxism is not warranted. At the outset, the Board notes that the Veteran has also been assigned an evaluation for residuals of a fractured mandible. This is a separate claim, which has been separately evaluated. Thus, any symptoms related to the fractured mandible or potentially related scars will not discussed herein, as they are not on appeal or before the Board. The Veteran was afforded a VA dental examination in connection with his claim in April 2010. Upon examination, the examiner reported that teeth numbers 1, 2, 3, 4, 15, 16, 17, 18, 19, 23, 24, 25, 26, and 32 were missing. The examiner reported that the loss of teeth was due to trauma and included loss of masticatory surface. He reported that the loss of masticatory surface could not be restored by suitable prosthesis. An examination of the mandible and maxilla were within normal limits. An x-ray performed revealed severe bruxism and apical abscess at teeth 6, 22 and 27. The Veteran then underwent a VA dental examination in May 2011. At that time, the Veteran reported having difficulty talking and chewing. An examination showed loss of teeth due to caries or fracture at teeth numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32. The loss of teeth included loss of masticatory surface; however, the May 2011 examiner opined that the lost teeth could be restored by a suitable prosthesis. The examiner also noted that the examination of the maxilla and mandible were within normal limits and that there was no objective evidence of pain or difficulty with speech. In November 2011, the Veteran had several VA medical appointments for the fitting of upper dentures. These records indicate that the Veteran was eligible for full upper dentures. The Veteran next underwent a VA dental examination in November 2011. At that time, it was again reported that the Veteran had no teeth. The examiner noted that there was no loss of bone of the maxilla, mandible, or hard palate. There was also no evidence of osteoradionecrosis, osteomyelitis, malunion, nonunion, and speech difficulty. The examiner opined that all missing teeth could be restored with a suitable prosthesis. The Veteran was also afforded another VA dental examination in April 2015. At that examination, the examiner reported that the Veteran was edentulous. Thee Veteran stated that his teeth had been removed due to his bruxism and that a denture had been made. However, the examiner noted that the Veteran had not brought the denture to the examination. The examiner found no anatomical loss or bony injury to the mandible or maxilla. He found that the Veteran had resorption of partial mandibular ridge, but opined that such resorption was normal and acceptable. He again opined that the Veteran's masticatory surfaces could be restored by a suitable prosthesis. The AOJ obtained an addendum VA opinion in July 2015 from the April 2015 examine, in order to address the Veteran's testimony that any made prostheses would fail due to his bruxism and that a lower prosthesis could not be made due to his lower jaw condition. The VA examiner considered such statements, but reiterated his opinion that all upper and lower arches could be restored by suitable full arch prostheses. After a review of the evidence of record, the Board finds that an increased evaluation is not warranted for the Veteran's bruxism. While an April 2010 VA examiner opined that the Veteran's lost masticatory surface could not be restored by suitable prosthesis, VA examinations performed in May 2011, November 2011, and April 2015 all found that suitable prostheses could be made. Indeed, the Board notes that the Veteran was fitted for upper dentures and is in receipt of the same. The Board acknowledges the Veteran's testimony that he does not use the upper dentures because he finds them to be too cumbersome; however, the evidence of record shows that a suitable prosthesis was made and delivered to the Veteran. While it is unfortunate that the Veteran does not like using the dentures, the evidence shows that a suitable prosthesis was made; this is the standard under Diagnostic Code 9913. Additionally, the Board notes that the Veteran has also stated that he was unsure as to why a lower denture was not made. He testified that the reason was because of his lower jaw; however, he also stated that lower dentures were not made because his compensation only covered the upper dentures. A review of the evidence shows that VA examinations performed in May 2011, November 2011, and April 2015 all found that a suitable prosthesis could be made for both the lower and upper jaw. Additionally, VA medical records dated in November 2011 indicate that the lower dentures were not made due to compensation issues rather than issues with the Veteran's jaw. Moreover, the Veteran's testimony that prostheses would fail due to his bruxism was also considered by the April 2015 VA examiner. That examiner opined that suitable prostheses could be made for both the upper and lower teeth. The opinion is supported by the evidence of record. As a suitable prosthesis could and has been made for the missing teeth, an increased evaluation is not warranted under Diagnostic Code 9913. The Board has also considered other potentially applicable Diagnostic Codes, under 38 C.F.R. § 4.150. However, there is no indication that the Veteran's bruxism has affected his mandible, maxilla, temporomandibular articulation, ramus, condyloid process, or hard palate. As such, an increased rating is not for application based upon Diagnostic Codes 9900-9912, or 9914-9916. The Board finds that the weight of the evidence is against a higher evaluation for the Veteran's bruxism. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. Major depressive disorder In this case, the Veteran's major depressive disorder is currently assigned a 70 percent evaluation, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. Under Diagnostic Code 9434, a 70 percent rating for major depressive disorder is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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; memory loss for names of close relatives, own occupation or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 100 percent evaluation for his service-connected major depressive disorder. VA medical records show that the Veteran was experiencing increased stress and depression in 2011 and 2012, as the Veteran's mother became increasing ill and passed away. Therapy session notes during that same period indicate that he was having difficulty getting along with his boss and show that the Veteran reported having a hard time at his job, making mistakes while on the job, and feeling a push to retire. During a VA evaluation in August 2012, an examiner found that the Veteran's cognitive functioning would significantly impair his ability to work unsupervised and opined that it was unclear how the Veteran had kept his job. The Veteran was later granted a total disability rating based on individual unemployability due to service-connected disability (TDIU) in May 2016, effective September 1, 2012. VA medical records show that the Veteran had difficulty adjusting to retirement in 2012 and had trouble occupying his time. At an appointment in November 2012, the Veteran reported that he was anxious and avoided most social situations. He was assisting his brother in sorting through his mother's belongings following her death. He reported a supportive relationship with his brother in April 2013; however, VA medical records dated from 2013 to 2015 reflect that the Veteran was generally not in contact with his brother. VA medical records also indicate that the Veteran maintained an isolated lifestyle. Indeed, he had never married, had no long-term relationships, and no children. He frequently reported that he had no friends and would not let anyone into his home. The Veteran's only reported social activity for the entire appeal period was his trips to McDonald's, where he would sometimes talk to other customers or meet other veterans. During a February 2015 VA medical appointment, the Veteran's provider noted that he had spoken to the Veteran about his "small bit of socializing" at McDonald's and discussed how the Veteran might expand the interactions into "even more meaningful interaction." The Board also notes that VA medical records reflect that the Veteran struggled with hoarding and cleaning his home during this time. He also had some difficulties with skipping meals and prioritizing eating. As noted above, VA has already found that the Veteran has total occupational impairment and granted entitlement to TDIU. After reviewing the evidence of record, the Board finds that the Veteran also has total social impairment. The Veteran has not maintained any social activities during the period on appeal. While the Board notes that the Veteran does sometimes go to McDonald's as a way to participate in the community, the evidence of record does not support that the Veteran is participating in any meaningful social connections during those outings. The Veteran's own healthcare provider acknowledged this and characterized the Veteran's visits to McDonald's as a "bit" of socializing. The Board also finds that, while the Veteran has been in touch with his brother at times during the appeal period, the overall evidence shows that the Veteran and his brother are not close and are frequently not in contact. In this case, the Board finds that a "bit" of socializing and infrequent contact with one family member over the course of several years rises to the level of total social impairment. The Board has also considered the Veteran's difficulties in maintaining his home as well as notations that he was, at times, not eating or seemingly unable to prioritize eating and his health. For these reasons, the Board finds that the Veteran's overall symptoms and impairment warranted a 100 percent evaluation for his service-connected major depressive disorder. III. Other Considerations VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). A claim for increased disability compensation may include the "inferred issue" of entitlement to special monthly compensation (SMC) even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). In this regard, SMC benefits may be payable if the veteran has a single service-connected disability rated 100 percent disabling, and in addition (1) has either additional disability or disabilities independently ratable at 60 percent or more or (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 C.F.R. § 3.350(i). A veteran is "permanently housebound" when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to permanent disability or disabilities, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350 (i)(2). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to SMC by reason of being housebound. With regard to housebound status, the threshold statutory requirement is that the veteran must have a single service-connected disability rated at 100 percent. In this case, the Veteran's major depressive disorder has been assigned a 100 percent evaluation; therefore, the Veteran does have a single service-connected disability rated as 100 percent disabling. However, he does not have an additional disability or disabilities independently ratable at 60 percent or more that are different anatomical segments or bodily systems. As such, an award of SMC is not warranted under 38 C.F.R. § 3.350(i)(1). Additionally, the Veteran does not meet the criteria with regard to being "permanently housebound" as the result of his service-connected disabilities. 38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350 (i)(2). As above, the Veteran's major depressive disorder is severe and has been evaluated as total occupational and social impairment. However, the evidence does not indicate that his service-connected major depressive disorder, bruxism, or residuals of a fractured mandible caused the Veteran to be substantially confined to any premises. The evidence does show that the Veteran goes on walks and to McDonald's and attends his medical appointments on his own. Consequently, the preponderance of the evidence weighs against the claim for SMC by reason of being housebound being met. 38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350 (i). ORDER An evaluation in excess of 10 percent for bruxism is denied. A 100 percent evaluation for the Veteran's major depressive disorder is granted. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs