Citation Nr: 21030796 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-41 905A DATE: May 19, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for loss of teeth is denied. REMANDED Entitlement to a rating in excess of 50 percent for a mood disorder is remanded. Entitlement to service connection for diabetes mellitus, type II (DMII) is remanded. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS) is remanded. FINDINGS OF FACT 1. The Veteran's psychiatric symptoms cannot be differentiated from those owing to his mood disorder that already has been determined to be a service-connected disability and that has been compensated at the 50-percent level effectively since March 21, 2012 (one of the claims at issue in this appeal is for a higher rating for this mood disorder, so on the premise it has worsened); PTSD conversely has not been diagnosed by a qualified mental health care practitioner and attributed to an especially traumatic event ("stressor") during the Veteran's service. 2. The preponderance of the evidence is against finding that the Veteran had a dental condition involving loss of substance of body of maxilla or mandible, or of the soft tissue surrounding that region, or had a dental disability resulted from in-service trauma necessary for service connection for compensation purposes. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for PTSD and providing separate ratings for PTSD and the already service-connected mood disorder would constitute impermissible pyramiding.38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 4.14. 2. The criteria are not met for entitlement to service connection for loss of teeth. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to October 1982. This appeal to the Board of Veterans' Appeals (Board) is from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for PTSD The Veteran contends that he is entitled to service connection for PTSD, in addition to his already determined to be service-connected mood disorder. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Entitlement to service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (meaning in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Ordinarily, separately diagnosed injuries are rated individually and then combined into a single rating to determine the overall impairment of a veteran's condition. 38 C.F.R. § 4.25. However, VA regulations prevent claimants from receiving multiple awards for the same impairment simply because that impairment could be labeled in different ways, known as pyramiding. 38 C.F.R. § 4.14. "The basis of disability evaluations is the ability of the body as a whole, or of the psyche, to function under the ordinary conditions of daily life including employment." 38 C.F.R. § 4.10. With respect to mental health disorders, the amount of impairment is measured by the social and occupational difficulties caused by a veteran's disorder. 38 C.F.R. § 4.130. The Court has addressed the applicability of this regulation in the context of mental health disorders. Amberman v. Shinseki, 570 F.3d 1377 (2009). In that case, the Court held that "the critical element is that none of the symptomatology for any one of these... conditions is duplicative of, or overlapping with, the symptomatology of the other... conditions." Id. at 1381 (quoting Estaban v. Brown, 6 Vet. App. 259 (1994)) (emphasis original to Estaban) (ellipses denotes only that the specific number of conditions being analyzed in Estaban, reproduced in Amberman, have been removed). Thus, Amberman holds that where any of the symptoms of one service-connected mental health disability overlap with the symptoms of any other disability, it is appropriate to rate the two disabilities together as a combined manifestation under the criteria set forth in 38 C.F.R. § 4.130. In December 2011, the Veteran was hospitalized for suicidal and homicidal ideation and depression. But, of note, he received a temporary 100 percent rating due to this hospitalization under the provisions of 38 C.F.R. § 4.29 because it was for treatment of his already service-connected mood disorder. The report of an April 2012 VA psychiatric examination for mental disorders other than PTSD and eating disorders shows the Veteran has psychiatric diagnosis of major depressive disorder with history of antisocial personality. The examination form states that, if the examiner finds a diagnosis of PTSD also warranted, to complete a VA psychiatric examination for PTSD. This examiner, however, did not find a diagnosis of PTSD warranted and, thus, did not complete a VA PTSD examination. VA treatment records sporadically reflect a past medical history of PTSD; however, these records do not show an actual PTSD diagnosis by a qualified practitioner, only instead a computerized note mentioning this diagnosis. The record on appeal does not contain or include a diagnosis of PTSD by a qualified practitioner or by any VA examiner, for that matter. Based on the evidence of record, the Board has recharacterized the Veteran's claim for an increased rating for his mood disorder to contemplate his other diagnoses aside from mood disorder. As a function of the Board's de novo review authority, after considering the medical evidence of record, the Board has recharacterized his claim for a higher rating for his mood disorder more broadly as a claim for a higher rating for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). The Board is remanding this claim for further development and if, on remand, it is determined the measure of symptoms specifically attributable to the mood disorder cannot be parceled out or differentiated from those, instead, attributable to the other mental disorders that have been diagnosed, then this reasonable doubt will have to be resolved in the Veteran's favor and, for all intents and purposes, all symptoms attributed to his mood disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). This still needs to be determined, however. Because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation generally will be assigned that encompasses all of the Veteran's overlapping psychiatric symptoms. While separate ratings may be warranted for different psychiatric disorders in some circumstances, Amberman 570 F.3d at 1381 ("We recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability"), separate ratings are not warranted in this case given the specific medical finding that the Veteran does not have a diagnosis of PTSD and, thus, his symptomatology is attributed in whole to his mood disorder and other diagnoses. Moreover, this is a complex medical question as to which lay testimony is not competent. Clemons, 23 Vet. App. 1 at 6 ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). Thus, the Veteran is not entitled to separate ratings for symptoms or impairment of PTSD and his mood disorder with depression, etc. Accordingly, service connection for PTSD is denied. 2. Entitlement to service connection for loss of teeth Dental disabilities are treated differently than medical disabilities in the VA benefits system. Generally, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease will be considered service-connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. Chapter 17. 38 C.F.R. § 3.381. Service connection for loss of teeth are unique claims as the Veteran must meet the requirements under 38 C.F.R. § 4.150 for compensation purposes. Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis (infection of the bone) or osteoradionecrosis (bone death due to radiation) of the maxilla (upper jaw) or mandible (lower jaw), 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. See 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900-9916. Dental treatment, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97; 38 C.F.R. § 3.306(b)(1). Moreover, for the purposes of determining whether a veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the Veteran's military service. The regulations are intended to cover dental trauma involving external, sudden-force injury, such as a combat wound to the teeth and jaw. See VAOPGCPREC 5-97 (1997); Nielson v. Shinseki, 607 F.3d. 802 (Fed. Cir. 2010). A claim for service connection is also considered to be a claim for VA outpatient dental treatment. See Mays v. Brown, 5 Vet. App. 302 (1993). Service connection for purposes of outpatient dental treatment may be granted for a dental condition of any tooth and/or and periodontal tissue shown by the evidence to have been incurred in or aggravated by service, so long as the veteran falls under one of a number of specific classifications. See 38 C.F.R. § 3.381(a) The portion of VA's Schedule for Rating Disabilities addressing dental and oral conditions was revised effective September 10, 2017. The new regulations involve benign or malignant neoplasms that are not applicable to the Veteran's claim and the other changes involved only clarification of the rating terms. The Veteran's service treatment records (STRs) do not show any trauma to his mouth or jaw area and show only routine dental care. The Veteran is not claiming entitlement to service connection for impairment of the mandible, loss of a portion of the ramus, loss of a portion of the maxilla, or similar disability manifested by bone loss. Moreover, upon review of the treatment records, there is no indication his claimed dental disorder involves symptoms consistent with loss of substance of the body of the mandible or bone loss in the maxilla or mandible region. The record does not contain any lay statements indicating he has loss of substance of the body of the mandible or bone loss in the maxilla or mandible region, only that he has lost teeth. Thus, his claim for service connection must be denied as a matter of law. In cases, as here, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Resultantly, the claim for dental care only is also denied. REASONS FOR REMAND Entitlement to a rating higher than 50 percent for the mood disorder is remanded. The Veteran asserts that he is entitled to a rating higher than 50 percent for his mood disorder. However, as already mentioned, he also has other diagnoses of other mental disorders, so, if possible, clarification is needed as to the extent of his symptoms that are attributable to his mood disorder from those, instead, attributable to the other mental disorders. And, as also already explained, if it is not possible to make this distinction, then, according to holding in Mittleider, all symptoms must be attributed to the mood disorder. Moreover, the Veteran was last examined concerning his mood disorder in April 2012, so more than 9 years ago. Considering that quite some time has passed since that evaluation and capturing an accurate current disability picture is critical to properly rating this condition, he needs to be reexamined to reassess the severity of this service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). Entitlement to service connection for DMII and bilateral CTS is remanded. The Veteran contends that his DMII and bilateral CTS are due to his service. The medical evidence of record shows the Veteran has current diagnoses of both DMII and bilateral CTS, so the question is whether they are the result of his service, as he is alleging. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Concerning his DMII, the record reflects that the Veteran was noted to have borderline high blood pressure during his September 1982 separation examination. He believes that elevated blood pressure reading was an early indication of DMII, although not until later diagnosed. Concerning his CTS, the record shows the Veteran suffered multiple hand injuries during his service. He believes those injuries could have caused his current CTS. Consequently, medical comment concerning this determinative issue of causation is needed before deciding the appeal of these claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Accordingly, these claims are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to reassess the severity of his service-connected mood disorder including, if possible, to determine what extent of his symptoms and consequent impairment is attributable to his mood disorder as opposed to the other mental disorders that also have been diagnosed such as major depressive disorder (MDD) with history of antisocial personality, etc. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. And, to reiterate, to the extent possible, the examiner should determine what measure of symptoms and consequent social and occupational impairment is due to the mood disorder, alone, versus the other mental disorders that also have been diagnosed. If it is not possible or feasible to make this distinction, the examiner should clearly indicate this and provide explanation. 2. Also schedule the Veteran for a VA examination for his DMII. The examiner must review the claims file and indicate whether it is at least as likely as not the Veteran's DMII (1) began during his active military service, including when considering his borderline high blood pressure during his September 1982 separation examination; or (2) manifested to a compensable degree within one year of his separation from service, so by October 1983; or (3) is otherwise related or attributable to his service? 3. As well, schedule the Veteran for a VA examination for his bilateral carpal tunnel syndrome (CTS). The examiner must review the claims file and indicate whether it is at least as likely as not the bilateral CTS originated during the Veteran's service from September 1974 to October 1982 or is otherwise related or attributable to his service, including to the multiple hand and finger injuries he sustained during his service. *Provide rationale for the opinions. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.