Citation Nr: 21076945 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-52 483 DATE: December 28, 2021 ORDER The claim of entitlement to a disability rating of 100 percent for posttraumatic stress disorder (PTSD) with depression and obsessive-compulsive disorder (OCD) is granted. REMANDED The claim of entitlement to service connection for temporomandibular joint disorder (TMJ), to include bruxism, and to include as secondary to a service-connected condition, is remanded. The claim of entitlement to a disability rating in excess of 10 percent for a cervical spine condition is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's psychiatric symptoms most closely approximates total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for PTSD with depression and OCD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Air Force from November 1977 to November 1997. These matters come before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A written transcript of that hearing has been prepared and is associated with the evidence of record. As for the issues relating to TMJ and the Veteran's service-connected cervical spine condition, although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board has broadened the issue of service connection for TMJ to include bruxism to give the Veteran a broader scope of review. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). Lastly, the Board notes that the rating decision on appeal denied the Veteran's claim for entitlement to a total disability rating due to individual unemployability (TDIU) but that the Veteran did not appeal that denial to the Board. As such, entitlement to a TDIU is not before the Board for adjudication. 1. The claim of entitlement to a disability rating in excess of 70 percent for PTSD with depression and OCD. The Veteran contends that she is entitled to a rating in excess of 70 percent for her service-connected PTSD with depression and OCD (hereafter, PTSD or psychiatric disorders). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 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; or memory loss for names of close relatives, own occupation or own name. The Board concludes that the Veteran's service-connected psychiatric disorders more nearly approximate the level of impairment required for a disability rating of 100 percent. VA examination evidence and the Veteran's testimony and other lay statements show that the Veteran's PTSD has manifested by symptoms associated with a 100 percent rating. The Veteran has experienced symptoms such as gross impairment of thought process or communications, persistent delusions and suspiciousness, persistent suicidal ideation, panic attacks, obsessive rituals and behaviors that interfere with daily activities, and impaired impulse control. For example, according to a June 2018 VA examination, the Veteran's psychiatric conditions resulted in functional impairments related to sleep, panic attacks, nightmares, intrusive memories, depressed mood, irritability, avoidance of various situations and social isolation. She was further functionally impaired due to her OCD in that she spent excessive time cleaning, organizing, and securing her home. As of that examination, the Veteran was not in a relationship and lived alone, but would not go anywhere else alone and felt chronically unsafe. She installed bars on her windows, set up mannequins in her home so that potential intruders would not think she was alone, and stated that she felt that someone was watching or stalking her. During her February 2020 VA examination, the examiner observed that the Veteran arrived late due to getting lost, was disoriented upon arrival and "immediately dysphoric." The examiner noted the Veteran's "thought process was extremely perseverative as well as tangential" and the examiner had to redirect the Veteran "multiple times with limited success." During her hearing before the Board, the Veteran described paranoid beliefs, consistent thoughts of suicide, and periods of disorientation, especially when she did not adhere strictly to routine. The Veteran reported that she had stopped living on her own, had moved in with her parents, and was unemployed. Viewed holistically, these symptoms more nearly approximate total social and occupational impairment as they cause the Veteran to pose consistent threat of harm to herself, to remain secluded at home, to remain constantly on alert, and to impair her ability to engage appropriately with other people in social and professional settings. As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating is warranted. Thus, the appeal is granted. REASONS FOR REMAND 1. The claim of entitlement to service connection for TMJ, to include bruxism, and to include as secondary to a service-connected condition. The Veteran contends that she has TMJ and bruxism as a result of her active service, to include as secondary to a service-connected condition. She contends that her PTSD and migraines cause her to grind her teeth (her bruxism), which has caused her to develop TMJ. The Veteran has been diagnosed with both TMJ and bruxism; however, the medical opinion evidence of record is inadequate to accurately adjudicate this appeal. See June 2018 VA examination. Specifically, the examiner noted the Veteran's report of symptoms of bruxism since 1995 and that she eventually developed popping and clicking symptoms in her TMJ. The examiner concluded that the etiology of the conditions was unknown and that there was "no pathological link" between TMJ and psychological issues. However, the examiner named plainly relevant psychosocial factors such as stress, anxiety, and depression as being related to symptoms such as jaw bracing, which can lead to bruxism. The Veteran testified to the Board that she clenches her jaw during periods of stress and during migraines. Further, the examiner cited potentially relevant causative factors for TMJ such as an "injury to head." The Board notes that the Veteran was recently service connected for a traumatic brain injury (TBI). As such, additional development is needed to address whether there are possible connections between the Veteran's TMJ and bruxism symptoms and other relevant service-connected conditions. 2. The claim of entitlement to a disability rating in excess of 10 percent for a cervical spine condition. The Veteran contends that her service-connected cervical spine condition, herniated nucleus pulposus at C6-7, warrants a disability rating in excess of 10 percent. During her February 2021 hearing before the Board, the Veteran testified that she experiences flare-ups, fatigability, limited range of motion, and radicular symptoms that she believes are related to her neck condition, and that have not been adequately addressed in her past VA examination. According to the June 2018 VA examination, the Veteran did not report flare-ups at that time and the examination report does not note symptoms of fatigue, as described during her hearing before the Board. VA has a duty to provide a contemporaneous examination when the evidence indicates the current rating may be incorrect, including when a Veteran states the condition has worsened since the last VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the Board finds remand warranted to obtain a contemporaneous examination. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records for the Veteran. 2. Provide the Veteran with the opportunity to complete appropriate authorization forms to obtain records from her private treating providers. Completion of these forms remains at the discretion of the Veteran. See February 2021 Board Hearing Transcript. 3. After the above development has been completed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected cervical spine condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner should identify whether the Veteran's symptoms during a flare-up could result in the functional equivalent of ankylosis. If it is not possible to provide the above measurements without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Next, obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's claimed TMJ condition, as broadened to include bruxism. The examiner must specifically address whether either or both conditions are at least as likely as not related to the Veteran's service-connected psychiatric conditions, and/or to her migraine condition, and/or to her TBI. The clinician's opinion must also address whether the Veteran's TMJ/bruxism has been aggravated beyond its natural progression by a relevant service-connected condition. The clinician must consider the Veteran's lay statements regarding the onset and course of these conditions, to include the Veteran's testimony to the Board, regarding grinding her teeth due to her PTSD and migraine symptoms. If a new examination is needed in order to provide these opinions, one should be scheduled. 5. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, ensure adequacy of the examinations and opinions provided, and readjudicate the claims on appeal. If it either claim remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.