Citation Nr: 1808725 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 10-17 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent beginning May 7, 2008 and a disability rating in excess of 70 percent beginning November 19, 2013 for bipolar disorder. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for gingivitis and grinding of teeth as secondary to service-connected bipolar disorder. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1981 to July 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2008 and December 2013 rating decisions of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Veteran reported that he needed more time to file his substantive appeal after the February 2010 statement of the case (SOC) because of his disability symptoms. The Veteran subsequently filed his substantive appeal in December 2012. While this is outside the normal sixty day period for substantive appeals, the Board finds good cause for the delay and accepts the Veteran's substantive appeal as timely. 38 U.S.C. § 7105(d)(3). In December 2013, the Veteran was granted a 70 percent evaluation for his bipolar disorder effective November 2013. As that did not constitute a grant of the full benefit sought on appeal, the claim for increase remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of sleep apnea is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Beginning in May 7, 2008 The Veteran's bipolar disorder caused symptoms that affected most areas of his life including affecting his thought processes, social relationships, and his occupational and functional capabilities. 2. The Veteran does not have a disability affecting his teeth that is a compensable disability for VA purposes. 3. The Veteran's bipolar disorder prevents him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Beginning May 7, 2008, a 70 percent evaluation, but not higher, is warranted for the Veteran's bipolar disorder. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.130 Diagnostic Code (DC) 9432 (2017). 2. The criteria for service connection for gingivitis and grinding of teeth as secondary to service-connected bipolar disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 4.9, 4.150 (2017). 3. The criteria for a TDIU rating have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The VCAA, in part, describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claims. The notice requirements have been met. VA's duty to notify was satisfied by a letter dated May 2008. See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159. That letter notified the Veteran of the information needed to substantiate and complete his claims, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain. Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been obtained. The AOJ arranged for appropriate VA examinations which were held in July 2008, November 2013, and January 2016. The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal. See generally 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has raised any other 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 duty to assist argument). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met and, accordingly, the Board will address the merits of the claims. II. Increased Rating Legal Criteria In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an award based on a claim for increase shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); see 38 C.F.R. 3.400(o)(1). In a claim for increase, the effective date of an award may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year prior to the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1)-(2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, the proper analysis is determining the earliest date that an increased rating was 'ascertainable' within the meaning of 38 U.S.C. § 5110 (b)(2) and if ascertainable on a date within one year before receipt of the claim for such increase, the effective date should be the date of ascertainable increase; otherwise, the proper effective date is the date of receipt of the formal or informal claim. Hazan v. Gober, 10 Vet. App. 511, 521 (1997). Under DC 9432, bipolar disorder, a 50 percent evaluation is warranted when there is 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. 38 C.F.R. § 4.130, DC 9432. A 70 percent 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent 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; memory loss for names of close relatives, own occupation, or own name. Id. 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); see Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not limited to those symptoms listed in the General Formula. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. Where an appeal is from the initial rating assigned with the award of service connection for a disability, the entire history of the disability must be considered and, if appropriate, separate "staged" ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Board will grant the Veteran's claim if the evidence supports the claim or is in relative equipoise. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background VA treatment records from September 2007 show the Veteran reported having memory problems. At that time the Veteran's physician noted an improvement in "motivation, attention, and mood." In a VA examination dated July 2008, the examiner found that the Veteran suffered from mood swings, periods of depression, and periods of racing thoughts and dysphoric mood, noting that the effect the symptoms had on his daily functioning was "significant." The examiner stated that the Veteran had difficulty establishing and maintaining effective social relationships because of his disorder. The examiner observed that the Veteran had normal speech and communication, but was "anxious and fidgety, diving into a thick case of documents he carried to validate his answers." The examiner found no evidence of obsessional rituals, delusions, or hallucinations, but did note that the Veteran was paranoid and irritable. VA treatment records from January 2011 show the Veteran went to the emergency room for problems regarding his "depressed mood" and difficulties regarding his focus. Physicians noted that he had been "up for days" without sleep. The Veteran reported that he had shifting moods, some where he was depressed, unable to sleep, "get things done," or focus. The Veteran reported that he believed he suffered from attention deficit hyperactivity disorder (ADHD), which caused him to be unable to focus. The physician found that the Veteran did not suffer from "overt delusions, but was preoccupied with diagnosis of ADHD." She noted however that the Veteran was "minimizing symptoms of hypomanic episodes" and that while symptoms of ADHD and bipolar disorder overlapped, treating his bipolar disorder would likely assist with his debilitating symptoms. In VA treatment records from February 2011, the Veteran reported racing thoughts, memory problems, difficulty concentrating, and pressured speech. The physician noted that the Veteran was "somewhat delusional" and was having difficulty sitting still during the examination. The Veteran stated that he was paranoid. The physician found that the Veteran had a dysphoric mood, difficulty in thought processes, and unrealistic judgment. In April 2011, the physician found that the Veteran had episodic memory issues, a disorder in thought content and processes, and guarded judgment. In June 2011, the physician stated that the Veteran's thought processes and content were relevant, but that he still suffered from spontaneous speech, reduced energy, decreased appetite, and agitation. In July 2011, the physician found the Veteran's thought processes were "circumstantial," his judgement was "implusive/guraded," and that his insight was "unrealistic." In October 2013, the Veteran reported that he lacked motivation, but did not suffer from racing thoughts or "psychotic processes." The social worker found that the Veteran's thought processes and content were relevant and that his judgment and insight were fair. In a November 2013 psychiatric examination, the Veteran was diagnosed with bipolar disorder that was "depressed, chronic, severe, without psychotic features." The examiner found that his disability caused occupational and social impairment in most areas of the Veterans life. The Veteran stated that his disability had "destroyed" his life and anything he tried to accomplish. The Veteran endorsed symptoms of depression, anxiety, near-continuous panic, sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner found that the Veteran had difficulty establishing relationships, intermittent inability to perform activities of daily living, and had difficulties maintaining minimal personal hygiene. In October 2015, the Veteran reported that he did not have "any distressing emotions." The psychologist noted that the Veteran was neatly dressed, was oriented to person time and place, had appropriate behavior, but had an "anxious" mood, with slight agitation when discussing finances. The Veteran did not endorse suicidal thoughts. In December 2015 treatment notes, a psychologist noted that the Veteran had suffered several periods of hypomania for the past few decades, including periods of decreased need for sleep, racing thoughts, and euphoric mood. In January 2016 VA psychiatric examination, the examiner found that the Veteran suffered from intermittent periods of occupational and social impairment. The examiner noted that the Veteran was distant from his family and had troubles in his relationship with his girlfriend. The Veteran reported that he had worked "odd jobs" since 1998 after his own computer store went out of business. The examiner noted that the Veteran had depressed mood, lack of drive, trouble concentrating, sleep issues, and low self-esteem. In a May 2017 psychiatric examination, the examiner found that the Veteran's bipolar disorder caused occupational and social impairment with recued reliability and productivity. The Veteran reported that he was dating someone and that he had social support from his "pool buddies." The examiner noted that the Veteran suffered from depressed mood, anxiety, and chronic sleep impairment. Analysis Beginning on May 7, 2008, it is clear that the Veteran's bipolar disorder affected most areas of his life. In a VA examination on that date, the Veteran's symptoms affected his mood, thought processes, and judgment and inhibited his occupational and social capabilities. While the Veteran had normal speech, the examiner found the Veteran to be "anxious and fidgety" suggesting difficulties in communication. While the Veteran did not endorse any obsessional rituals, the examiner noted that he suffered from previous manic episodes and was generally paranoid. Treatment records in the following years show that his symptoms continued to affect all areas of his life. Upon hospitalization in January 2011, the Veteran's manic mood had kept him awake for days without sleep. He reported shifting moods, an inability to function, and a preoccupation with ADHD. Similarly in the next year, the Veteran was found to be "somewhat delusional," having difficulty in thought processes. These symptoms continued to be exhibited in the January 2016 examination. Overall, it is clear that the Veteran's bipolar disorder reached a severity to warrant a 70 percent evaluation beginning May 7, 2008. Regarding an earlier date for increase, there is no evidence of record up to one year prior to this time that would suggest the Veteran's bipolar disorder was severe enough to warrant a higher than 30 percent evaluation from May 2007 to May 2008. Furthermore, a 100 percent evaluation is not warranted for the Veteran's bipolar disorder. During this period there was no evidence that the Veteran had an inability to maintain minimal hygiene. The Veteran has never been a danger of hurting others or exihibited grossely inappropriate behavior. While he has some difficulty in thought processes, he was generally oriented to time and place in treatment and assessment. While the Veteran was found to be delusional at times, he does not suffer from persistent delusions or hallucinations. Overall, while the Veteran's depressive symptoms touch most areas of his life, they do not cause him to have total occupational and social impairment that would warrant a 100 percent rating. III. TDIU An award of TDIU requires that a veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability, and that the veteran have a single service-connected disability rated at 60 percent or more, or at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Substantially gainful employment is defined as work which is more than marginal and which permits the veteran to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the veteran's service-connected disabilities are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The effective date for the grant of TDIU is governed by the increased rating provisions of 38 C.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 229 (2000). The Veteran in this case meets the schedular requirements for TDIU. He is currently service-connected for bipolar disorder at 70 percent. The record also shows that the Veteran is unable to maintain or obtain substantially gainful employment because of his service-connected disability. In a January 2016 examination, the examiner found that the Veteran's psychiatric ability presented "several obstacles to his securing gainful employment." The examiner noted that the Veteran's mental illness prevent him from obtaining his GED and complete vocational rehabilitation. Additionally, the Veteran's sleep issues and oversleeping caused by depression and sleep apnea made it difficult for him to work a normal schedule. Additionally, the examiner noted that the Veteran's depressive symptoms would inhibit him from remembering and following instructions, concentrate, or interact with other customers. In correspondence dated July 2017, a vocational specialist noted that the Veteran's "limitations and symptoms that have been accepted through the rating decisions are enough to eliminate all work; for example, errors in judgment, difficulty in establishing relationships." The specialist noted that the Veteran had not finished high school and had no transferrable work skills. She noted that the Veteran was restricted to "an unskilled job with regimented pace of production, close supervision, limited breaks, and rigid schedules." But because of the Veteran's sleep deficiencies, inability to follow orders, and lack of motivation caused by his bipolar disorder, the specialist stated that it was her professional opinion that the Veteran was unable to secure or follow a gainful occupation since May 5, 2008. Overall, it is clear that the Veteran's bipolar disorder and affiliated symptoms prevents him from obtaining and maintaining substantially gainful employment. Therefore, TDIU is warranted. IV. Service Connection The Veteran claims service connection for teeth grinding (bruxism) and gingivitis secondary to service-connected bipolar disorder. The Board will address each of these claims in turn, but ultimately there is no evidence that the Veteran has a dental disability for VA compensation purposes. First, service connection for bruxism is not warranted. When entitlement to service connection for teeth grinding has been developed as a wholly-separate claim with no relation to any other service-connected disability, the Board notes that compensation is not available for this disorder on its face. See 38 C.F.R §§ 3.303 (c), 4.9 (2017). Bruxism is not listed under the schedule of ratings at 38 C.F.R. § 4.150 as a dental or oral condition that is capable of service connection. Even if it was able to be service-connected for loss of teeth, DC 9913 notes that the loss must be due to loss of substance of the body of the maxilla or mandible without loss of continuity. The Veteran did not allege that bruxism was caused by trauma to the jaw or disease. As such, the Veteran has no current "teeth grinding" disability for VA compensation purposes, and service connection for a dental or oral condition manifested by bruxism is not warranted. Importantly, the Board notes that the Veteran states his teeth grinding is secondary to his service-connected bipolar disorder. Treatment records show that his psychological symptoms often occur concurrently with his report of bruxism. Because teeth grinding has not manifested into a compensable disability, however, secondary service connection is not warranted. Instead, the record suggests that bruxism is in fact a symptom related to his bipolar disorder, which is not separately compensable. As to the Veteran's claim for gingivitis, dental compensation is only paid for loss of teeth due to loss of substance of the body of maxilla or mandible without loss of continuity (as a result of trauma) or disease such as osteomyelitis, and not the loss of alveolar process as a result of periodontal disease, such as gingivitis, since such loss is not considered disabling. See Note, 38 C.F.R. § 4.150, DC 9913. Accordingly, there is no compensable dental disability under VA regulations and service connection is not warranted. The Board notes that a claim for service connection is also considered to be a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). A discussion of entitlement to outpatient dental treatment however is moot. The Board finds that the Veteran has met the requirements for outpatient dental treatment because, as of this decision, he has been granted TDIU and is at a 100 percent evaluation and thus eligible for "any needed dental treatment." 38 C.F.R. § 17.161 (h). The Board finds that service connection for gingivitis and grinding of teeth as secondary to service-connected bipolar disorder is not warranted because there is no disability as defined by VA regulations. See 38 C.F.R. §§ 3.102, 3.303; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (existence of a current disability is the cornerstone of a claim for VA disability compensation). ORDER Entitlement to an increased rating of 70 percent, but not higher, beginning May 7, 2008 for the Veteran's bipolar disorder is granted. Entitlement to a TDIU rating is granted. Service connection for gingivitis and grinding of teeth as secondary to service-connected bipolar disorder is denied. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 C.F.R. § 3.159. A medical opinion is required to address whether or not the Veteran's sleep apnea relates to events in service or is caused or aggravated by his service-connected bipolar disorder. The Veteran has stated that his sleeping disorder is caused by his bipolar disorder and has provided scientific articles that discuss the correlation between psychiatric conditions and sleep apnea diagnoses. Any opinion provided will need to examine and address this additional evidence provided by the Veteran. Additionally, the Veteran continues to seek treatment with the VA. The AOJ should ensure that VA treatment records are updated to the present time. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain updated VA treatment records beginning August 2017. 2. The AOJ should arrange for an appropriate VA examiner to provide a medical opinion that addresses the cause of the Veteran's diagnosed sleep apnea. The need for another examination is left to the discretion of the examiner providing the opinion. The Veteran's entire record, including this remand, must be reviewed by the examiner in conjunction with the examination, and all indicated tests and studies must be completed. Additionally, the examiner is asked to review and address the medical article submitted by the Veteran that discusses the correlation between psychiatric diagnoses and sleep apnea. Based on this review of the record, the examiner should provide opinions that respond to the following: a) Please identify the likely cause the Veteran's diagnosed sleep apnea. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, related to, or caused by any other incident during the Veteran's military service? The Board notes that STRs document several instances where the Veteran overslept and had difficulty with sleeping. b) Please state whether it is at least as likely as not (a 50% or better probability) that the Veteran's sleep apnea is caused or aggravated by his service-connected bipolar disorder. The examiner is asked to address the medical evidence submitted by the Veteran that suggests a relationship between his diagnosed sleep apnea and bipolar disorder. The examiner should provide a complete rationale in support of any opinions offered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. After undertaking the above actions and any other necessary development, the AOJ should then review the record and readjudicate the claim. If the claim remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his attorney opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs