Citation Nr: 20038041 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 16-12 663 DATE: June 3, 2020 ORDER An increased initial rating of 70 percent for the Veteran’s psychotic disorder, not otherwise specified (NOS), for the period prior to June 29, 2019, is granted. A total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an initial rating in excess of 20 percent for temporomandibular joint (TMJ) dysfunction is denied. Entitlement to an earlier effective date prior to October 25, 2011 for the grant of service connection for TMJ dysfunction is denied. Entitlement to an earlier effective date prior to October 25, 2011 for the grant of service connection for psychotic disorder, NOS, is denied. FINDINGS OF FACT 1. The Veteran’s psychotic disorder, NOS, is productive of occupational and social impairment with deficiencies in most areas for the period prior to June 29, 2019. Symptoms of total social and occupational impairment for the period prior to June 29, 2019 are not demonstrated. 2. For the period prior to June 29, 2019, the Veteran’s service-connected psychotic disorder precluded her from securing or maintaining a substantially gainful occupation. 3. There is no evidence the Veteran’s TMJ dysfunction was productive of an interincisal range of less than 21 millimeters (mm), or that it required any dietary restrictions. 4. The Veteran’s initial claim of entitlement to service connection for TMJ dysfunction was received by the Department of Veterans Affairs (VA) on October 25, 2011; no earlier claim was filed. 5. The Veteran’s claim for service connection for a psychiatric disorder was previously denied in a November 1995 rating decision. The Veteran was notified of the denial but neither appeal nor submitted additional evidence within one year of the decision, and it became final. 6. The Veteran’s request to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder was received by VA on October 25, 2011. CONCLUSIONS OF LAW 1. For the period prior to June 29, 2019, the criteria for an increased initial disability rating of 70 percent for the psychotic disorder, NOS, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9210. 2. For the period prior to June 29, 2019, the criteria for a TDIU are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19. 3. The criteria for an initial increased rating in excess of 20 percent for TMJ dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.150, Diagnostic Code 9905. 4. The criteria for an effective date earlier than October 25, 2011 for the award of service connection for TMJ dysfunction are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date earlier than October 25, 2011 for the grant of service connection psychotic disorder, NOS are not met. 38 U.S.C. §§ 5110, 7105, 38 C.F.R. §§ 3.104, 3.160, 3.400, 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to April 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and August 2013 rating decisions by the VA Regional Office (RO) in Oakland, California. The matter was previously before the Board in September 2018. At that time, the Board remanded the matter to, among other things, obtain updated VA examinations for the Veteran’s TMJ dysfunction and psychotic disorder, NOS, disabilities and to obtain the Veteran’s Social Security Administration (SSA) records. As the Veteran was afforded updated VA examinations and the SSA records were added to the record, the Board finds that the RO has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s Contentions The Veteran contends that she is entitled to increased initial ratings for psychotic disorder, NOS and TMJ dysfunction and that they should be made effective from her date of discharge from service. The Veteran also contends that she is unable to obtain and maintain substantially meaningful employment because of her psychotic disorder. Increased Ratings Generally, disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Entitlement to a higher initial rating in excess of 50 percent prior to June 29, 2019 for psychotic disorder, NOS The Veteran is rated at 50 percent for her psychotic disorder, NOS for the period from October 25, 2011 to June 29, 2019. A 50 percent rating is assigned 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 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), 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 of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). After review of the evidence of record, the Board finds that the Veteran’s psychotic disorder NOS symptoms more closely approximate a 70 percent disability rating. Specifically, the evidence demonstrates social and occupational impairment with deficiencies in most areas, including family relations, work, thinking and mood. With respect to deficiencies in family relations, the Veteran reported to the December 2011 VA examiner that she had a distant relationship with her oldest son and had a social network that included her father and aunt. The Veteran reported to the April 2013 VA examiner that she had contact with her father but no relationship with her sister and some contact with her adult son, but no close relationship with him. In April 2017, the Veteran reported that she was estranged from her father and sister. A June 2017 VA treatment record notes the Veteran’s family discord, minimal social support and difficult time trusting others. The Veteran reported that she had no contact with her sister or father. With respect to work, the record reflects that the Veteran has not been employed since 1996, when she worked briefly in sales. The Veteran reported that she left the sales position as her condition got worse and she was afraid to leave her house. The December 2011 and April 2013 VA examiners noted that the Veteran’s symptoms included difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported as part of a December 2019 mental health assessment that she had trouble keeping jobs due to her mental health symptoms. The Veteran receives Social Security disability benefits based, at least in part, on her psychiatric disorder. With respect to deficiencies in the Veteran’s thinking, the record reflects that the Veteran has a long history of paranoia, grandiose delusions, intrusive thoughts and hallucinations. The December 2011 and April 2013 VA examiners noted that the Veteran’s symptoms included suspiciousness. The examiners also noted the Veteran’s report of the effects of her paranoia and fear of leaving her house. VA treatment records consistently reflect the Veteran’s reports that she had difficulty trusting others, leading to reclusiveness and frequent moves to avoid what she perceived as stalking by others. The Veteran also consistently reported auditory and visual hallucinations. With respect to deficiencies in mood, VA treatment records and VA examinations demonstrate ongoing symptoms of depression, anxiety and disturbances of motivation and mood. The December 2011 VA examiner noted the Veteran’s anxiety and the April 2013 VA examiner noted symptoms of anxiety and disturbances of motivation and mood. A March 2016 VA treatment note reflects the Veteran’s depression and anxiety, resulting in her occasional neglect of hygiene. In December 2015, the Veteran reported anxiety at 10/10, depression at 9/10 and feelings of hopelessness. At an August 2016 mental health consultation, the Veteran reported severe anxiety and sad mood with feelings of hopelessness, helplessness and worthlessness. The Veteran also reported depression and anxiety in April 2017. A December 2018 VA treatment record notes “significant” depression and anxiety that impeded daily functioning. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran’s PTSD have more nearly approximated the criteria for a 70 percent rating, but not higher, throughout the period on appeal. The Veteran’s symptoms have been manifested by ongoing symptoms of depressed mood, anxiety, hypervigilance, suspiciousness, feelings of hopelessness, disturbances of motivation and mood, intrusive thoughts and hallucinations. The competent medical and lay evidence of record reflects that the Veteran’s symptoms have caused deficiencies in her family relations, work, thinking and mood. Accordingly, the Board finds that the Veteran’s symptomatology has been consistent with the criteria for a 70 percent rating. Although the evidence does not show symptomatology such as illogical speech, spatial disorientation or periods of violence, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan, 16 Vet. App. at 442-43. The Board also finds that the evidence does not support a 100 percent rating for the appeal period. The Veteran has not exhibited symptoms such as gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, memory loss for names of close relatives, own occupation or own name. The record reflects that despite the Veteran’s reclusive and itinerant lifestyle, she is able to maintain some relations with her family and care for her younger son. VA treatment records reflect that the Veteran is general normally oriented and cooperative, with adequate grooming, despite experiencing depression, anxiety, suspiciousness and disturbances of mood and motivation. Total social and occupational impairment has not been indicated by the Veteran’s treatment records or VA examiners for the appeal period. 38 C.F.R. § 4.130, Diagnostic Code 9210. Accordingly, a higher initial disability rating of 100 percent is not warranted for the time period from October 25, 2011 to June 29, 2019. Entitlement to a TDIU The issue of TDIU is relevant for the period prior to the 100 percent rating for the Veteran’s psychotic disorder, NOS. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). In order to be entitled to a TDIU, the evidence must show that the Veteran is incapable “of performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Here, the Veteran qualifies for a TDIU as of October 25, 2011, as a result of this decision assigning a 70 percent rating for psychotic disorder, NOS from that date. The record reflects that the Veteran is a high school graduate with some college credit and a technical certificate. The Veteran was last employed in sales in 1996 and the record does not reflect any employment since that time. The Veteran was deemed entitled to Vocational Rehabilitation & Employment (VRE) services in August 2014 but was discharged from the program in October 2014 due to her failure to contact her Vocational Counselor. The Veteran reported that she left her sales position because her mental health symptoms became progressively worse, to the point that she was afraid to leave her home. As noted, the Veteran’s inability to interact with others and symptoms of depression, anxiety and suspiciousness have interfered with her ability to obtain employment. The Veteran is in receipt of Social Security disability benefits since 1998 due in part to her mental health symptoms. Based on the foregoing, the Board finds that the Veteran is entitled to a TDIU for the period from October 25, 2011 to June 29, 2019. The competent medical and lay evidence establishes that, given the Veteran’s education, training and experience, her service-connected psychotic disorder NOS would preclude her from obtaining and retaining substantially gainful employment. The record reflects the Veteran’s ongoing anxiety, depression, suspiciousness and inability to interact with others would preclude her from maintaining full-time employment. Affording the Veteran the benefit of the doubt, she is entitled to a TDIU. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to a higher initial rating in excess of 20 percent for TMJ dysfunction The Veteran’s TMJ dysfunction is rated at 20 percent pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9905, effective October 25, 2011. That Diagnostic Code was amended during the pendency of this appeal, effective September 10, 2017. See 82 Fed. Reg. 36080, 36,083 (August 3, 2017). Where the law or regulation changes after a claim has been filed or reopened, but before administrative or judicial process has been concluded, the version most favorable to the appellant will apply, unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 U.S.C. § 5110(g); VAOGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Desousa v. Gober, 10 Vet. App. 461, 467 (1997). Under DC 9905 prior to September 10, 2017, for limited motion of temporomandibular articulation: interincisal range of 0 to 10 millimeters (mm) warrants a 40 percent rating; 11 to 20 mm warrants 30 percent; and 21 to 30 mm warrants 20 percent. Beginning September 10, 2017, Diagnostic Code 9905 provides that an interincisal range of 0 to 10 mm of maximum unassisted vertical opening; with dietary restrictions to all mechanically altered foods warrants a 50 percent rating; without dietary restrictions to mechanically altered foods warrants 40 percent. Interincisal range of 11 to 20 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants 40 percent; without dietary restrictions to mechanically altered foods warrants 30 percent. Interincisal range of 21 to 29 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 40 percent; with dietary restrictions to soft and semi-solid foods warrants 30 percent; without dietary restrictions to mechanically altered foods warrants 20 percent. Interincisal range of 30 to 34 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 30 percent; with dietary restrictions to soft and semi-solid foods warrants 20 percent; without dietary restrictions to mechanically altered foods warrants 10 percent. Lateral excursion range of motion of 0 to 4 mm warrants 10 percent. The Veteran underwent VA examinations for her TMJ dysfunction in December 2011 and July 2019. The Veteran reported to the December 2011 examiner that she experienced flare-ups every day that caused pain, trouble talking and eating tough foods, difficulty sleeping, a stiff neck, trouble swallowing and head and neck aches. The examiner measured range of motion for lateral excursion as greater than 4 millimeters (mm) and for interincisal distance as 31 to 40 mm, with objective evidence of pain. Functional loss after repetitive use resulted in less movement than normal, weakened movement, excess fatigability and pain on movement, with range of motion reported as 21 to 30 mm. The Veteran reported to the July 2019 examiner that she had flare-ups of pain with jaw use. Range of motion for lateral excursion was measured as greater than 4 mm and for interincisal distance as greater than 34 mm with pain noted on examination. The Veteran had objective evidence of localized tenderness or pain on palpation and mild crepitus or clicking of the right jaw. The examiner noted that the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that the Veteran did not require a mechanically altered foods diet. VA treatment records reflect complaints of jaw pain related to the Veteran’s TMJ dysfunction. Based on the foregoing, the Board finds that the Veteran is not entitled to an initial disability rating in excess of 20 percent under Diagnostic Code 9905 or other relevant ratings for dental and oral conditions. During the appeal period, the probative evidence of record indicates an interincisal range of motion of more than 21 mm with no restricted diet. Accordingly, the Veteran’s TMJ dysfunction does not warrant a rating above 20 percent under either version of Diagnostic Code 9905. The Board notes that the Veteran is service connected for tension headaches related to her TMJ dysfunction, and there is otherwise no evidence of additional disabilities or symptoms related to the TMJ dysfunction to warrant a higher rating under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9913. The Board has also considered whether factors such as functional impairment and pain addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for the Veteran’s mandible disability during the appeal period. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. the record indicates that the Veteran experiences crepitus and pain with chewing and talking. The credible medical and lay evidence does not suggest that that the Veteran’s symptoms have resulted in additional limitation of motion that more nearly approximates the symptoms required for a higher rating. Specifically, the Veteran reported that she experienced pain on flare-ups but did not report additional loss of range of motion. The December 2011 VA examiner noted that the Veteran’s repetitive use testing resulted in additional limitation of motion, but noted that the interincisal range of motion was 21 to 30 mm. Both VA examiners noted and considered the Veteran’s statements regarding painful motion and the effect on the limitation of motion. As such, the Veteran’s 20 percent disability rating accounts for painful motion and limitation of motion and the Board finds that an initial disability rating in excess of 20 percent is not warranted. Effective Dates Entitlement to an earlier effective date prior to October 25, 2011 for the grant of service connection for TMJ dysfunction Generally, except as otherwise provided, the effective date of the award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the initial claim for service connection for TMJ dysfunction was received on October 25, 2011. The record does not reflect an earlier claim and, accordingly, October 25, 2011 is the earliest date allowable for service connection for TMJ dysfunction under 38 C.F.R. § 3.400. Although the Veteran may have had TMJ dysfunction prior to that date, VA cannot assign an effective date for an award of service connection based on the earliest medical evidence showing a causal connection to service; rather, it must assign the date that it received the application upon which service connection was eventually awarded. LaLonde v. West, 12 Vet. App. 377, 382 (1999). Accordingly, the claim for an effective date prior to October 25, 2011 is denied. Entitlement to an earlier effective date prior to October 25, 2011 for the grant of service connection for psychotic disorder, NOS The record reflects that the Veteran’s initial claim for service connection for a psychiatric disorder was filed in May 1995. The claim was denied in a November 1995 rating decision. The Veteran was notified of the decision but did not appeal that rating decision and new and material evidence was not submitted within a year, rendering the decision final. The Veteran sought to reopen the claim on October 25, 2011. The proper effective date for a claim based on new and material evidence other than service medical records is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C. § 5110(i); 38 C.F.R. § 3.400(q)(2), (r). Here the Veteran’s request to reopen was received on October 25, 2011. As the record reflects that the Veteran had a psychiatric disorder prior to the date VA received her application to reopen the previously denied claim, the later date is the date the claim to reopen was received. Therefore, an effective date earlier than October 25, 2011 is not warranted for the grant of service connection for a psychotic disorder, NOS. 38 U.S.C. § 5110(a). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.