Citation Nr: 18151239 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 10-44 342A DATE: November 19, 2018 ORDER Entitlement to service connection for a dental disorder for compensation purposes is denied. Entitlement to an initial rating of 50 percent, but no higher, prior to January 24, 2014 and 70 percent, but no higher, from January 24, 2014 for service-connected major depressive disorder is granted. (The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities will be the subject of a separate, panel decision.) REMANDED Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a dental disorder. 2. For the initial period on appeal prior to January 24, 2014, the Veteran’s service-connected major depressive disorder symptoms at least occupational and social impairment with reduced reliability and productivity. 3. For the period on appeal from January 24, 2014, the Veteran’s service-connected major depressive disorder symptoms have approximated occupational and social impairment with deficiencies in most areas but have not led to total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disorder for compensation purposes are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for a disability rating of 50 percent, but no higher, for service-connected major depressive disorder for the initial period on appeal prior to January 24, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.130, Diagnostic Code (DC) 9434 (2018). 3. The criteria for a disability rating of 70 percent, but no higher, for service-connected major depressive disorder for the period beginning January 24, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.130, DC 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to October 2005 in the United States Navy. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Because a claim for service connection for a dental disorder for purposes of compensation must also be considered to be a claim for service connection for a dental disorder for purposes of VA outpatient dental treatment, the Board has recharacterized the issues as stated above. See Mays v. Brown, 5 Vet. App. 302 (1993). 1. Entitlement to service connection for a dental condition is denied. The Veteran contends that he has a dental disorder related to his in-service dental treatment. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a compensable dental condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). VA compensation is available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. Under this code, service connection is available when there is evidence of loss of teeth due to bone loss of the body of the maxilla or the mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. See 38 C.F.R. §§ 4.150, DC 9913; 17.161(a). Otherwise, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal (i.e., gum) disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161. Service-connected compensation is also available for dental conditions including chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, temporomandibular articulation and limited jaw motion, loss of the ramus, loss of the condyloid process, loss of the hard palate, loss of the maxilla, and malunion or nonunion of the maxilla. See 38 C.F.R. § 4.150, DC 9900-9916. The July 2018 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of hot and cold sensitivity and cosmetic discoloration of bonding, he did not have a diagnosis of any compensable dental disorder. The VA examiner identified mostly cold sensitivity of teeth numbers 10 and 11, discoloration of cosmetic bonding, a small area of decay on tooth 14, and leaking sealant on tooth 15. However, the VA examiner stated that there “are no physical/emotional dental issues” and recommended a follow up to with the Veteran’s non-VA dental provider to address the issues identified. Additionally, the VA examiner stated that the Veteran “indicated he is not really looking for compensation—just wanted to see if he could get the bonding replaced.” Further, there are no post-service treatment records other than an isolated toothache/cold sensitive tooth in July 2010, for any dental disorder. The Veteran has not alleged that his loss of teeth is due to bone loss of the body of maxilla or mandible due to any trauma or disease such as osteomyelitis. Therefore, service connection for a dental condition is not warranted. 2. Entitlement to an increased disability evaluation for service-connected major depressive disorder. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran’s major depressive disorder is currently rated in two stages, 30 percent for the initial period and 70 percent from June 20, 2018. The major depressive disorder has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9434. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A 30 percent rating is warranted for major depressive disorder when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for 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 an inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. 38 C.F.R. § 4.130. The Veteran underwent an initial VA mental disorders examination in February 2011. This examination served as the basis to establish service connection for major depressive disorder. The Veteran’s post-military history indicates isolating tendencies from his family, whom he was living with, and “violent spouts” documented as recently as July 2010 when he attacked a “family friend.” The psychiatric examination noted indifferent attitude, blunted affect, dysphoric mood, impulse control described as “fair” but noted the episode of violence that the Veteran described as “improved.” The Veteran’s recent memory was also described as mildly impaired. Further symptoms and frequency include depressed mood nearly every day, diminished interest in activities, weight loss and loss of appetite, fatigue/loss of energy, worthlessness/guilt nearly every day, and decreased concentration. Overall the VA examiner characterized the impact of the Veteran’s major depressive disorder as meeting the 50 percent rating criteria. In January 2014 the Veteran underwent a second VA mental disorders examination. The Veteran’s relevant mental health history discussed depression with vegetative symptoms, suspicions of others, mildly illogical with a lack of insight into this when pointed out to him. The Veteran also discussed periods of “black out” where he becomes aggressive with impaired memory. The Veteran discussed previously being committed to a psychiatric facility after “becoming angry and threatening his parents.” The Veteran claimed to not remember the incident. The symptoms present at the time of the examination included depressed mood, suspiciousness, chronic sleep impairment, flattened affect, speech intermittently illogical, obscure, or irrelevant, and disturbances of motivation and mood. In August 2015 the Veteran submitted statements from his mother and sister describing their observations of the impact of the Veteran’s psychological symptoms. The Veteran testified in a Board hearing before the undersigned Veterans Law Judge in March 2017 regarding the impact of his major depressive disorder symptoms. The statements of the Veteran’s family and his sworn testimony further support the objectively confirmed symptoms of depression, anger and aggression, illogical speech, impaired impulse control with periods of violence, impaired memory, disturbances of motivation and mood, and social isolation. The Veteran underwent a VA mental disorder examination, subsequent to the previous Board remand, in June 2018. The examiner characterized the Veteran’s service-connected depressive disorder as manifesting with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner specifically discussed the Veteran’s ongoing issues with social isolation, anxiety, loss of appetite, significant intrusive memories of his in-service trauma, avoidance of people and thoughts due to in-service trauma, angry and aggressive outbursts, and hypervigilance. The Veteran’s symptoms identified on the examination were depressed mood, suspiciousness, speech intermittently illogical, obscure, or irrelevant, difficulty in adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. His mood was described as, “very stressed out.” Shortly thereafter the Veteran underwent an additional VA mental disorders examination in August 2018. The VA examiner characterized the Veteran’s service-connected depressive disorder at the same level as the June 2018 VA examination. This VA examiner specifically discussed the extent of the Veteran’s depression which lasts “weeks,” hopelessness, worthlessness, a lack of interest in his former activities, increased anxiety in public and around people, anger towards family members characterized by screaming and physical retaliation, chronic sleep impairment, appetite loss, and some concentration issues. In September 2018 the RO increased the Veteran’s disability rating for service-connected major depressive disorder to 70 percent, effective the date of the June 2018 examination. Throughout the period on appeal the Veteran has routinely received psychiatric treatment from VA. The symptoms identified throughout the Veteran’s treatment are consistently depression, anxiety, anger and aggression, and social isolation. The Board finds that the Veteran’s service-connected major depressive disorder more closely approximates the criteria for a 50 percent rating for the initial period on appeal prior to January 24, 2014, and more closely approximates the criteria for a 70 percent rating from January 24, 2014, the date of a VA mental disorders examination. The Veteran’s initial VA examination includes a statement from the VA examiner characterizing the impact of the Veteran’s major depressive disorder symptoms as causing occupational and social impairment with reduced reliability and productivity. The symptoms identified included depression, impaired mood and blunted affect, slight impaired judgement and impulse control with aggressive outbursts, problems with concentration, and decreased activity. The VA examiner’s opinion and the Veteran’s symptomatology suggest the Veteran’s disability picture more closely approximated that contemplated by the 50 percent rating criteria. For the initial period on appeal prior to January 24, 2014, the evidence does not more closely approximate a disability rating in excess of 50 percent. Specifically, prior to the January 2014 VA examination there is no objective evidence of speech intermittently illogical, obscure, or irrelevant, impaired impulse control with periods of violence, difficulty adapting to stressful circumstances or other symptoms which approximate the criteria for a higher evaluation. The Board notes that the January 2014 VA examination is evidence of a clear increase in severity of the Veteran’s service-connected major depressive disorder symptoms. Most significant is the intermittently illogical, obscure, and irrelevant speech, the instances of lack of impulse control marked by physical violence, memory impairments described as “black out” periods. The evidence in this examination demonstrates a disability picture that more closely approximates the severity evidenced in the June and August 2018 which served as the basis for the increase to 70 percent. Thus, the Board finds that the Veteran is entitled to a 70 percent disability rating beginning January 24, 2014, the date of that VA examination. The Board, however, finds that the Veteran is not entitled to a higher, 100 percent rating, as the requirements are not more nearly approximated. There is no probative evidence of spatial disorientation, delusions or hallucinations, or obsessional rituals which interfere with routine activities, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent issues related to personal grooming or hygiene, or intermittent inability to perform activities of daily living. The Veteran is able to function mentally and behaviorally on a daily basis. Symptoms of similar frequency, severity or duration are not shown. Overall, the Veteran has not demonstrated symptoms consistent with or approximating the general level of impairment warranting a 100 percent evaluation, or akin to the symptoms as found in the rating criteria. REASONS FOR REMAND Entitlement to service connection for a noncompensable dental disability for the purpose of obtaining VA outpatient dental treatment under 38 C.F.R. § 17.161 The issue of entitlement to service connection for a dental disorder for treatment purposes has not yet been addressed by the RO or any VA dental clinic. In the May 2011 rating action on appeal, the RO forwarded the Veteran’s claims file to the VA Medical Center Salisbury and suggested the Veteran contact that facility “for additional information regarding outpatient treatment for your dental condition.” The Veteran’s claim of service connection for a dental condition for purposes of compensation is also a claim for service connection for a dental disability for purposes of VA outpatient dental treatment. Mays, 5 Vet. App. at 302. The Veteran’s claim for outpatient dental treatment must be adjudicated. Accordingly, the claim for entitlement to service connection for a dental disorder for treatment purposes must be remanded so that it can be addressed in the first instance by a VA dental clinic. The matter is REMANDED for the following action: Send the claim of service connection for dental treatment to the appropriate VA medical center for a determination. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod