Citation Nr: 18153378 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-05 616A DATE: November 27, 2018 ORDER Entitlement to service connection for periodontal disease, to include as secondary to service-connected diabetes mellitus, type II (diabetes), is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes, is dismissed. A 70 percent rating, and no higher, for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) is granted from February 27, 2007. REFERRED The Board notes that, in general, a claim of service connection for a dental disorder may also be treated as a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). In dental claims, the Regional Office (RO) adjudicates the claim of service connection for compensation benefits and the corresponding VA Medical Center (VAMC) adjudicates the claim for outpatient treatment. As the Veteran’s claim for a dental disability stems from an adverse determination on the issue of service connection for a dental disability for the purpose of compensation by the RO, the appeal is limited to that issue. The claim of entitlement to service connection for a dental disorder for the purpose of obtaining VA outpatient dental treatment is therefore referred to the Agency of Original Jurisdiction (AOJ), for additional referral to the appropriate VAMC. REMANDED Entitlement to service connection for a sleep disorder, to include as secondary to service-connected diabetes, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes, is remanded. Entitlement to service connection for a left hand disorder, to include as due to frostbite and service-connected diabetes, is remanded. Entitlement to service connection for a right hand disorder, to include trigger finger claimed as due to frostbite and service-connected diabetes. is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a dental disability for which service connection may be granted for compensation purposes. 2. In an August 2015 rating decision, the RO granted the Veteran’s claim of entitlement to service connection for erectile dysfunction secondary to service-connected coronary artery disease. 3. Throughout the appeal, the Veteran’s PTSD and MDD most nearly approximates occupational and social impairment with deficiencies in most areas, but less than total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a dental disorder for compensation purposes are not met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; VAOGCPREC 5-97. 2. The issue of entitlement to service connection for erectile dysfunction is dismissed for lack of case or controversy concerning this issue. 38 U.S.C. § 7105 (d)(5). 3. The criteria for a rating of 70 percent for PTSD and MDD, but no more, are met from February 27, 2007. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to September 1973, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2008, October 2009, and May 2010 rating decisions of the Department of Veterans Affairs (VA) RO. The Veteran was scheduled for a Board hearing, but he withdrew his hearing request in August 2018. See August 2018 VA Form 27-0820; 38 C.F.R. § 20.704(e). The Board notes that VA has associated additional evidence with the record since the February 2013 Supplemental Statement of the Case (SSOC), to include VA treatment records, a February 2015 male reproductive organ VA examination, and a December 2015 peripheral neuropathy VA medical opinion. In August 2018, the Veteran’s representative submitted a waiver of initial consideration of this evidence by the AOJ. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran is unemployable due to symptoms of his service-connected PTSD and MDD, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. 1. Entitlement to service connection for periodontal disease, to include as secondary to service-connected diabetes, is denied. The Veteran asserts that he lost his teeth as a result of periodontal disease stemming from his service-connected diabetes. Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a dental disorder for compensation purposes is not warranted, as there is no competent evidence showing a diagnosis of any of the disabilities listed under 38 C.F.R. § 4.150. In a December 2009 medical opinion, Dr. K.L.K. opined that the Veteran’s dental condition is more likely than not related to his diabetes. A May 2010 VA treatment record indicates that the Veteran had missing teeth. In the January 2011 SOC, VA requested the Veteran to submit medical evidence regarding a specific diagnosis, to include periodontal disease or replaceable missing teeth. To date, the Veteran has not furnished the requested information. The Veteran does not contend, and the evidence does not suggest, that he sustained trauma to the mouth or teeth during service, that his current dental problems were due to combat, or that he was a prisoner of war. See 38 C.F.R. § 3.381(b). The Board notes that service connection for replaceable missing teeth and periodontal disease for compensation purposes is not legally permitted, and as a matter of law this claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes, is dismissed. In an August 2015 rating decision, the RO granted the Veteran’s claim of entitlement to service connection for erectile dysfunction secondary to service-connected coronary artery disease. The RO’s action in granting service connection for erectile dysfunction constitutes a complete grant of the benefit sought on appeal with respect to this claim. As such, there no longer remains a case or controversy with respect to this claim. Thus, the claim must be dismissed, as the issue of entitlement to service connection for erectile dysfunction is no longer in appellate status. See 38 U.S.C. § 7105(d)(5); see also Grantham v. Brown, 114 F.3d 1156 (1997). 3. A 70 percent rating, and no higher, for PTSD and MDD is granted from February 27, 2007. The Veteran’s PTSD and MDD are currently rated 50 percent disabling. He asserts that throughout the entire appeal his service-connected acquired psychiatric disorders have been more severe than the currently assigned rating and that he is entitled to an increased rating. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 PTSD and MDD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2017). Under the General Rating Formula for Mental Disorders, a 50 percent rating for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when the psychiatric condition produces 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational or 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, memory loss for names of close relatives, own occupation, or own name. After a review of the medical and lay evidence, the Board finds that the criteria for a higher rating of 70 percent are met throughout the appeal, effective February 27, 2007. The evidence shows that the Veteran’s PTSD and MDD produces deficiencies in most areas due to such symptoms as: suicidal ideation, depressed mood, anxiety, anger, chronic sleep impairment, nightmares, avoidance, panic attacks, short-term memory loss, disturbances of motivation and mood, hypervigilance, isolation, impaired impulse control and judgment, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (“the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.”). In a January 2008 written statement, his wife of over 30 years, described the Veteran as “bipolar” with anger problems, especially in regards to his relationship with their daughter. During the January 2008 VA examination, he reported symptoms of emotional numbness, flashbacks and distressing dreams, survivors guilt, loss of interest, tearfulness, and loss of interest in other people. See also July 2014 VA treatment record. Further, he reported an estranged relationship with his brother and sister. The Veteran was given the Mississippi Scale for Combat Related PTSD and his score indicated a severe case of PTSD. In addition, he was given the Beck Depression Inventory and his score indicated the presence of extremely severe depression. The January 2008 VA examiner opined that the Veteran’s PTSD interferes with employment and social functioning because of his inability to get along with his co-workers and his inability to tolerate being in close quarters with strangers. The combination of this symptomatology is demonstrative of occupational and social impairment in most areas. A higher, 100 percent rating is not warranted as the evidence of record does not support a finding that the Veteran has exhibited the level of cognitive, occupational and social impairment that render him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. There have been no deficiencies identified in the Veteran’s thought processes or communication, nor has there been any indication of disorientation, delusions, hallucinations, or grossly inappropriate behavior, and he has never reported memory loss of the severity contemplated by a 100 percent rating. He has endorsed suicidal ideation but consistently denied any intent or plans of hurting himself; thus, the evidence does not demonstrate a persistent danger of the Veteran hurting himself or others. See August 2010 and July 2014 VA treatment records; January 2008 VA examination report. As such, the preponderance of the evidence shows that the Veteran’s psychiatric symptomatology does not more closely approximate the criteria for a 100 percent disability rating under the general rating schedule for psychiatric disorders. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   REASONS FOR REMAND 4. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected diabetes and PTSD, is remanded. A September 2009 VA sleep study record notes “[p]rovider(s) should exercise extreme caution when prescribing drugs causing CNS depression as this may aggravate OSA as well as precipitate OSA…” As the Veteran is service-connected for PTSD and MDD, the Board finds that it is appropriate to expand the scope of the Veteran’s sleep disorder claim to include entitlement to service connection on a secondary basis to include service-connected PTSD and MDD. Furthermore, the April 2010 VA examiner opined that there is no relationship between the Veteran’s obstructive sleep apnea and his diabetes. This opinion is inadequate, as it does not include sufficient rationale as to the issue of causation or aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 414 (2013). Thus, an addendum opinion is needed. 5. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes is remanded. In January 2008, a VA examiner opined that it is less likely than not that the Veteran’s essential hypertension is secondary to his diabetes, as his hypertension emerged prior to the diabetes diagnosis. This opinion is inadequate, as it does not include sufficient rationale as to the issue of causation or aggravation and inadequately relies on a temporal requirement not encompassed in 38 C.F.R. § 3.310(a), and thus, holds no probative value. See Frost v. Shulkin, 29 Vet. App. 131 (2017). Thus, an addendum opinion is needed. 6. Entitlement to service connection for a left hand disorder, to include as due to frostbite and service-connected diabetes, is remanded. 7. Entitlement to service connection for a right hand disorder, to include trigger finger claimed as due to frostbite and service-connected diabetes, is remanded. The Veteran reports that on a flight from Fort Devens in January 1968, the cabin heater went out and has experienced hand and finger pain and numbness since then. See January 2009 written statement. His DD Form 214 indicates that he was an airplane pilot. Based on his credible reports, an in-service cold weather injury is conceded as consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Additionally, during the appeal period, the Veteran was diagnosed with bilateral trigger fingers. Therefore, the Board finds that a VA cold weather injury examination and medical opinion should be obtained on remand. 8. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes, is remanded. 9. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes, is remanded. The Veteran asserts that he has bilateral lower extremity peripheral neuropathy that is caused or aggravated by his service-connected diabetes. An August 2007 VA treatment record notes lack of protective sensation to hot stimuli with diagnoses of peripheral neuropathy and plantar fascitis. On VA examination in January 2008 his vibratory sensation was diminished at both ankles. The nerve conduction study for the bilateral legs and feet was normal; however, radicular cause could not be excluded. VA treatment records following the January 2008 examination continue to show complaints of left lower leg tingling and diagnosis of peripheral neuropathy treated with Gabapentin. See April 2014 and October 2014 VA treatment records. As the January 2008 VA examination does not address the etiology of the Veteran’s diagnosed peripheral neuropathy, an addendum opinion is needed on remand. 10. Entitlement to a TDIU is remanded. The Board finds that the issue of entitlement to a TDIU due to his service-connected PTSD and MDD has been raised by the Veteran’s January 2008 VA examination report. However, this issue has undergone no preliminary notice and/or evidentiary development to date. Thus, on remand, the Veteran should also be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and appropriate notice should be furnished. Updated VA and private treatment records should be obtained on remand. The matters are REMANDED for the following actions: 1. Provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to a TDIU. 2. Request that the Veteran complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Obtain any outstanding VA treatment records. 4. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 5. Then obtain an addendum opinion regarding the etiology of the Veteran’s sleep disorder and hypertension. After a review of the claims file, the examiner is requested to provide a specific opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep disorder and hypertension are proximately due to his service-connected PTSD and MDD and/or diabetes. Please note that it is not necessary that PTSD or diabetes be service-connected, or even diagnosed, at the time his sleep disorder or hypertension are incurred, and reliance on this fact in support of a negative opinion will render it inadequate. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep disorder and hypertension are aggravated (worsened beyond natural progression) by his service-connected PTSD and MDD and/or diabetes. Please note that it is not necessary that PTSD or diabetes be service-connected, or even diagnosed, at the time his sleep disorder or hypertension are incurred, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale shall be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed for both disabilities. 6. Then schedule the Veteran for a VA cold weather injury examination to determine the nature and etiology his bilateral hand disorder. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All indicated tests and studies should be conducted, and all findings reported in detail. For the purposes of rendering this opinion, please presume the existence of a current diagnosis of bilateral triggering of the ring finger, as this diagnosis was made during the appeal period (thereby legally establishing evidence of a present disability). a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hand disorder, to include bilateral triggering of the ring finger, is related to service, to include as a result of a conceded cold weather injury in January 1968 when the cabin heater went out in flight. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hand disorder, to include bilateral triggering of the ring finger, is proximately due to his service-connected diabetes. c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hand disorder, to include bilateral triggering of the ring finger, is aggravated (worsened beyond natural progression) by his service-connected diabetes. A complete rationale shall be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed. 7. Then obtain an addendum opinion regarding the etiology of any bilateral lower extremity peripheral neuropathy. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. No additional examination is needed, unless the examiner determines otherwise. a) The examiner should address the Veteran’s exact diagnosis and should clarify if the Veteran has peripheral neuropathy of the bilateral lower extremities (early or late onset) or some other diagnosis. If the examiner determines that the Veteran does not have peripheral neuropathy, he or she must address the Veteran’s use of Gabapentin to treat his peripheral neuropathy. See VA treatment records. b) The examiner should opine whether the Veteran has early onset peripheral neuropathy, and if so, was it manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents. c) For diagnosed bilateral lower extremity peripheral neuropathy, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is causally or etiologically related to the Veteran’s military service, to include presumed exposure to herbicide agents therein. d) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral lower extremity peripheral neuropathy is proximately due to his service-connected diabetes. e) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral lower extremity peripheral neuropathy is aggravated (worsened beyond natural progression) by his service-connected diabetes. A complete rationale shall be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed for both disabilities. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Forde, Counsel