Citation Nr: 20053843 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 15-32 552 DATE: August 13, 2020 ORDER Entitlement to revision, on the basis of clear and unmistakable error (CUE), of the April 2020 rating decision that found the initial grant of service connection for bruxism in the January 2013 rating decision was itself CUE, is granted. The April 2020 rating decision is reversed and service connection for bruxism is reinstated, effective September 19, 2012. Entitlement to an inial compensable rating for anemia prior to December 9, 2018 and greater than 10 percent thereafter is denied. REMANDED Entitlement to an inial compensable rating for bruxism is remanded. FINDING OF FACT 1. The statutory or regulatory provisions extant were not correctly applied in the April 2020 rating decision, and the failure to correctly apply the laws and regulations manifestly changed the outcome of that rating decision. 2. Prior to December 9, 2018, the Veteran’s hemoglobin level was not 10gm/100ml or less. 3. Beginning December 9, 2018, the Veteran’s required continuous treatment with iron oral supplementation, but did not require intravenous iron infusions at any time during the period on appeal. CONCLUSION OF LAW 1. The criteria for entitlement to revision of an April 2020 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. Prior to December 9, 2018, the criteria for a compensable rating for anemia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.117, Diagnostic Code (DC) 7700. 3. Beginning December 9, 2018, the criteria for a rating greater than 10 percent for the Veteran’s anemia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.117, DC 7720. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1956 to October 1959 and June 1960 to June 1961. The Board remanded the claim in April 2018 for further development. There has been substantial compliance with the remand in connection with claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Revision of the April 2020 rating decision on the basis of CUE The Board remanded the bruxism claim in April 2018 for additional development. However, in the April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) found clear and unmistakable error (CUE) with the initial January 2013 rating decision that granted secondary service connection for bruxism. The Board has jurisdiction over the CUE claim as part of the initial claim on appeal, even in the absence of a notice of disagreement as to the recent CUE finding. Cf., Turk v. Peake, 21 Vet. App. 565 (2008). Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be undebatable, not merely a disagreement as to how the facts were weighed or evaluated ; and (3) the commission of the alleged error must have manifestly changed the outcome of the decision being attacked on the basis of CUE at the time that decision was rendered. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. The January 2013 rating decision on appeal granted service connection for bruxism as secondary to the Veteran’s service-connected posttraumatic stress disorder (PTSD) and assigned an effective date of September 2012. The Veteran has continuously appealed the rating for bruxism since then. During the pendency of this appeal, a final rule prohibiting bruxism as a stand-alone disability was enacted in August 2017. See 82 Fed. Reg. 36080-36086 (Aug. 3, 2017). The Final Rule against bruxism as a stand-alone disability became effective on September 10, 2017. In the April 2020 rating decision, the AOJ cited that rule as the basis for finding CUE in the initial grant. The U.S. Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994) (holding that statutes generally may not be construed to have retroactive effect unless their language requires that result). See also Vet. Aff. Op. Gen. Couns. Prec. 7-2003, VAOPGCPREC 7-2003, 2003 (holding that “Statutes and regulations... are presumed not to apply in any manner that would produce genuinely retroactive effects, unless the statute or regulation itself provides for such retroactivity.”). In this case, the appeal of the initial rating for the already service-connected bruxism was pending prior to the September 10, 2017 effective date of the regulation change, so the new regulatory bar against bruxism does not apply to this Veteran’s claim. More important for the CUE analysis, that changed regulation was not in effect at the time of the January 2013 rating decision. The Board also notes that in the Final Rule, VA acknowledged that bruxism may be contemplated as a symptom of craniomandibular disorders, of which temporomandibular disorders under 38 C.F.R. § § 4.150, Diagnostic Code (DC) 9905, are a subset, and that other symptoms of craniomandibular disorders include anxiety, stress, and other mental disorders. The Final Rule further noted that VA has determined that secondary service connection for treatment purposes only is warranted for bruxism, both because bruxism is only a secondary condition, not a primary condition, and because its symptoms are already contemplated by the underlying condition. 36081. However, here, service connection for bruxism was granted as secondary to PTSD. And the symptoms of bruxism are not contemplated by the rating criteria for PTSD and thus, are not already contemplated by the rating assigned for the PTSD. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The April 2020 rating decision did not address the correct facts; CUE in the April 2020 rating decision is established. The Board finds that the April 2020 rating decision itself was CUE. Therefore, there was no clear and unmistakable error with the January 2013 rating decision that granted bruxism secondary to PTSD as a separate compensable disability. Service connection and a separate rating for bruxism are still in effect. . 2. Entitlement to an inial compensable rating for anemia prior to December 9, 2018 and greater than 10 percent thereafter The Veteran contends that his service-connected anemia warrants a compensable rating prior to December 9, 2018, and greater than 10 percent thereafter. Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to December 9, 2018, the Veteran’s anemia was assigned a noncompensable rating under 38 C.F.R. § 4.117, DC 7700. Under DC 7700, a 10 percent rating is warranted for a hemoglobin level of 10 gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is warranted for a hemoglobin level of 8 gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is warranted for a hemoglobin level of 7 gm/100 ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). A 100 percent rating is warranted for a hemoglobin level of 5 gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest. 38 C.F.R. § 4.117, DC 7700. Effective December 9, 2018, the rating criteria for anemia was revised by removing DC 7700 (Anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) and adding separate diagnostic codes (DC’s 7720-7723) for the four major types of anemia that are neither hereditary nor secondary (addressed under the diagnostic code for the causative condition). See 83 Fed. Reg. 54254 (October 29, 2018). Beginning December 9, 2018, anemia is rated under DC 7720, iron deficiency anemia. Under DC 7720 iron deficiency anemia requiring intravenous iron infusions 4 or more times per 12-month period warrants a maximum 30 percent rating, while iron deficiency anemia requiring intravenous iron infusions at least 1 time but less than 4 times in a 12-month period, or requiring continuous treatment with oral supplementation provides a 10 percent rating. A noncompensable rating is provided for asymptomatic iron deficiency anemia or requiring treatment only by dietary modification. Id., 38 C.F.R. § 4.117, DC 7720. Medical treatment records between December 2011 to March 2019 show the Veteran’s hemoglobin to be between 11.5 gm/100 ml to 12.8 gm/100ml. The Veteran was given a VA examination for anemia in November 2012. The examiner reported that the Veteran’s hemoglobin was 12.6 gm/100 ml and that the Veteran did not require continuous medication to supplements his iron to treat his anemia. The Veteran was given a VA examination in a June 2016 for his anemia. The examiner noted the Veteran reported weakness, some shortness of breath (SOB) and palpitations. The Veteran reported to the examiner that he is no longer taking medication for anemia and that his anemia is in remission but is being watched by his providers. The examiner reported that the Veteran’s hemoglobin was 12.8 gm/100 ml and that his anemia had no functional impact on the Veteran’s ability to work. The Veteran was given a VA examination in November 2019. The examiner found the Veteran’s anemia to be active and that he required continuous oral supplements of ferrous sulfate to treat his anemia and that his anemia was asymptomatic. The Veteran’s hemoglobin was 12.3 gm/100 ml. Prior to December 9, 2018 the Veteran was rated under DC 7700. His medical treatment records between December 2011 to March 2019 do show that the Veteran’s hemoglobin was 10.0 gm/100 ml or lower at any time. Prior to December 9, 2018, these findings equate to a noncompensable rating under DC 7700. A higher 10 percent rating is not warranted as the Veteran’s hemoglobin was not 10 gm/100 ml or lower with weakness, fatiguability or headaches at any time during the period on appeal. After the rating criteria for anemia was changed in December 9, 2018 to DC 7720, the Veteran met the criteria for a 10 percent rating which the AOJ granted in a April 2020 rating decision effective December 9, 2018. During this period, the Veteran’s medical treatment records show that he was taking ferrous sulfate orally to treat his anemia. A higher 30 percent rating is not warranted because the Veteran’s treatment records do not show that he received intravenous iron supplement treatment at any time during the period on appeal. The Board acknowledges the Veteran’s statements that his anemia has worsened. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the anemia has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. In summary, the competent and credible evidence shows that the Veteran does not meet the criteria for a compensable disability rating for his anemia prior to December 9, 2018, or greater than a 10 percent disability rating thereafter. Accordingly, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s increased rating claim for anemia must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. REASONS FOR REMAND Entitlement to an initial compensable rating for bruxism is remanded. The Board remanded the claim to obtain an examination on the current severity of the Veteran’s bruxism. The AOJ did not undertake again of the directed development. Given the Board decision that there was CUE in the April 2020 rating decision, the claim for an initial compensable rating for bruxism remains on appeal and must be remanded again. Stegall, 11 Vet. App. at 268. The claim is remanded for a VA dental examination. The matters are REMANDED for the following action: 1. Reinstate the Veteran’s service connection for bruxism as a separate compensable disability, effective September 19, 2012. 2. Schedule the Veteran for an appropriate VA dental examination to determine the severity of his service-connected bruxism. Copies of all pertinent records should be forwarded to the examiner for review. All indicated testing should be carried out and the results recited in the examination report. The examiner is requested to delineate all symptomatology associated with, and the current severity of the bruxism. The appropriate DBQ should be filled out for this purpose, if possible M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.