Citation Nr: 21040842 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-56 663 DATE: July 7, 2021 ORDER Entitlement to an initial compensable rating for benign lung nodule prior to April 22, 2019 is denied. Entitlement to a rating higher than 10 percent for benign lung nodule from April 22, 2019 is denied. Entitlement to an initial rating higher than 10 percent for right temporomandibular joint (TMJ) dysfunction with bruxism is denied. Entitlement to an initial rating higher than 10 percent for left TMJ dysfunction with bruxism is denied. Entitlement to an initial rating higher than 70 percent for major depressive disorder is denied. FINDINGS OF FACT 1. For the period prior to April 22, 2019 the Veteran's benign lung nodule was not productive of forced vital capacity (FVC) of 75 to 80 percent predicted; or, diffusion capacity of carbon monoxide, single breath (DLCO (SB)) of 66 to 80 percent predicted. 2. For the period from April 22, 2019 the evidence of record does not support findings of a forced expiratory volume in one second (FEV-1) of 56 to 70 percent predicted; or, a FEV-1/FVC ratio of 56 to 70 percent; or, daily inhalational or oral bronchodilator therapy; or, inhalational anti-inflammatory medication. 3. The Veteran's right and left TMJ dysfunction with bruxism has not manifested in interincisal range of motion limited to 21 to 30 millimeters; or 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, as recorded or verified by a physician, or 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. 4. The Veteran's major depressive disorder has not been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for benign lung nodule prior to April 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.96, 4.97, Diagnostic Codes (Codes) 6828-6820. 2. The criteria for entitlement to a rating higher than 10 percent for benign lung nodule from April 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.96, 4.97, Codes 6828-6602. 3. The criteria for entitlement to an initial rating higher than 10 percent for right TMJ dysfunction with bruxism have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.21, 4.150, Code 9905. 4. The criteria for entitlement to an initial rating higher than 10 percent for left TMJ dysfunction with bruxism have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.21, 4.150, Code 9905. 5. The criteria for entitlement to an initial rating higher than 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 2011 to November 2015. These matters were previously before the Board of Veterans' Appeals (Board) in January 2019 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to TDIU was granted on remand, effective from the June 22, 2018 date of claim. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable rating for benign lung nodule prior to April 22, 2019 The Veteran seeks an initial compensable rating for his service-connected benign lung nodule for the period prior to April 22, 2019. The Veteran's service-connected benign lung nodule has been rated noncompensable by analogy under 38 C.F.R. § 4.97, Codes 6828-6820. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. The disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. See 38 C.F.R. §§ 4.20, 4.27. Code 6820 pertains to benign neoplasms of any part of the respiratory system. Code 6820 indicates that disabilities should be evaluated using an appropriate respiratory analogy. 38 C.F.R. § 4.97, Code 6820. Code 6828 pertains to eosinophilic granuloma of the lung, which is considered an interstitial lung disease. 38 C.F.R. § 4.97, Code 6828. Under the General Rating Formula for Interstitial Lung Disease, a 10 percent rating is granted for FVC of 75 to 80 percent predicted; or, DLCO (SB) of 66 to 80 percent predicted. A 30 percent rating is warranted on FVC of 65 to 74 percent predicted; or, DLCO (SB) of 56 to 65 percent predicted. For a 60 percent rating, the evidence must show FVC of 50 to 64 percent predicted; or, DLCO (SB) of 40 to 55 percent predicted; or, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. Finally, a 100 percent rating is assigned for FVC of less than 50-percent predicted; or, DLCO (SB) less than 40-percent predicted; or, maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; or, cor pulmonale or pulmonary hypertension; or, where outpatient oxygen therapy is required. 38 C.F.R. § 4.97. Turning to the evidence, the Veteran was afforded VA respiratory conditions examination pertaining to his benign lung nodule in June 2015, at which time no symptoms related to the disability were indicated, and no PFT studies were performed. A review of VA Medical Center (VAMC) treatment records, however, reveal a pulmonary function test (PFT) was performed in May 2016. Results show FVC was 93.7 percent predicted; FEV-1 was 74.9 percent predicted and FEV-1/FVC was 66 percent. Post-bronchodilator testing revealed FVC was 98.2 percent predicted; FEV-1 was 84.7 percent predicted and FEV-1/FVC was 71 percent. DLCO-SB was 88.4 percent predicted. The interpretation was that spirometry reveals mild airway obstructive defect. Lung volumes were within normal limits. The diffusing capacity was normal. There was significant improvement in spirometry following bronchodilator. Chest x-rays taken in May 2016 show noncalcified nodule of the left upper lung region. In a May 2016 letter, a VA staff physician informed the Veteran that the results of the testing for lung function did not show any defects of thickening of air spaces in his lungs. On May 2017 the Veteran was seen at a VAMC with complaints of feeling like his airway was restricted. He reported his Albuterol inhaler was not helping. He was told that a pulmonary function test was ordered, and he would receive a call to schedule the test. Based on the above, the Board finds that for the period prior to April 22, 2019 there are no compensable residuals of the Veteran's benign lung nodule. The record has shown reliable PFT or spirometry results. During the period under consideration, the Veteran's lung disability has not been found to meet the criteria under the applicable diagnostic code to warrant a compensable rating. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a rating higher than 10 percent for benign lung nodule from April 22, 2019 In June 2020 the RO increased the rating for the Veteran's benign lung nodule to 10 percent effective from April 22, 2019. The RO rated the increased rating under Codes 6820-6602. The Veteran now seeks a rating higher than 10 percent for his service-connected benign lung nodule for the period from April 22, 2019. Under Code 6602, a 10 percent rating is warranted when PFTs reveal a FEV-1 of 71- to 80-percent predicted; or, FEV-1/FVC of 71 to 80 percent; or, intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted when a FEV-1 of 56 to 70 percent predicted; or, a FEV-1/FVC ratio of 56 to 70 percent; or, daily inhalational or oral bronchodilator therapy; or, inhalational anti-inflammatory medication. A 60 percent rating is warranted for a FEV-1 of 40 to 55 percent predicted; or, a FEV-1/FVC ratio of 40 to 55 percent; or, at least monthly visits to a physician for required care of exacerbations; or, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A maximum rating of 100 percent is warranted for a FEV-1 of less than 40 percent predicted; or, a FEV-1/FVC ratio of less than 40 percent; or, more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). The Veteran was afforded a VA-contract respiratory conditions examination in April 2019. The pulmonary condition noted on examination is lung nodule. Chest x-rays in May 2019 revealed a benign lung nodule. A PFT was scheduled in May 2019; the Veteran failed to report for the PFT. No explanation for his failure to report has been offered by the Veteran or his representative, nor has he expressed a desire to be afforded a PFT or submitted any evidence of an increase in the severity of any symptoms associated with his service-connected benign lung nodule. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991). In view of the foregoing, the Board concludes that there is no duty to attempt to provide another examination and finds that there has been substantial compliance with the Board's January 2019 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since there is no PFT of record for the period from April 22, 2019 the Board is unable to ascertain whether the Veteran's service-connected lung disability increased in severity to warrant the next higher 30 percent rating under Code 6602. Pulmonary results from a PFT are necessary in this case to determine the current severity of the Veteran's benign lung nodule under Codes 6828-6602. Without results from a PFT, the Board must conclude further that the claim for a rating higher than 10 percent for benign lung nodule from April 22, 2019 is not warranted. 3. Entitlement to an initial rating higher than 10 percent for right TMJ dysfunction with bruxism 4. Entitlement to an initial rating higher than 10 percent for left TMJ dysfunction with bruxism The Veteran's service-connected right and left TMJ dysfunction are rated under 38 C.F.R. § 4.150, Code 9905. During the appeal period, the rating criteria for dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective September 10, 2017, and the revised schedular criteria are applicable as of that date. See 82 Fed. Reg. 36080, 36,083 (August 3, 2017). When an increase is 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). Under Code 9905 in effect prior to September 10, 2017, a 10 percent rating is warranted when interincisal range of motion is limited to 31 to 40 millimeters; a 20 percent rating from 21 to 30 millimeters; a 30 percent rating from 11 to 20 millimeters; and a maximum 40 percent rating for 0 to 10 millimeters. Limited motion of the range of lateral excursion from 0 to 4 mm warrants a 10 percent rating. Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150. Under Code 9905 in effect from September 10, 2017, a 10 percent rating is warranted for 30 to 34 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods; or, for limited motion of the range of lateral excursion from 0 to 4 millimeters. A 20 percent rating is warranted for 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, and for 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 30 percent rating is warranted for 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, for 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, and for 11 to 20 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. A 40 percent rating is warranted for 21 to 29 millimeters of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods, for 11 to 20 millimeters of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods, and for 0 to 10 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. Finally, a maximum 50 percent disability rating is warranted for 0 to 10 mm of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods. Ratings for limited interincisal movement shall not be combined with ratings for limited lateral excursion. Id., Code 9905 Note (1). For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. Id., Note (2). Mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. Id., Note (3). On April 2017 VA TMJ conditions examination, the Veteran reported his jaw hurts worse when he eats chewy foods or opens too wide, especially on the right side. He reported pain in the range of 8/10 on the Wong-Baker Faces Pain Rating Scale when most symptomatic. The Veteran did not report having any functional loss or functional impairment of his TMJs. On range of motion testing, right lateral excursion was 12 millimeters and left lateral excursion was 10 millimeters. There was no pain noted on range of motion on either side of the right or left. There was no evidence of pain with chewing/mastication on the right or left. There was, however, evidence of crepitus or clicking of joints or soft tissue of the right and left TMJs. On the left, there was late click on opening and closing. Inter-incisal distance was 52 millimeters on the right. There was no additional functional loss or range of motion after three repetitions, bilaterally. Pain, weakness, fatigability or incoordination on both sides did not significantly limit functional ability with repeated use over time. The examiner was unable to opine whether pain, weakness, fatigability, or incoordination, on left and right sides, could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time because the Veteran was not experiencing a flare-up at the time of the examination. Degenerative or traumatic arthritis was not shown on imaging studies of the TMJs. The diagnoses were TMJ dysfunction and bruxism. It was noted that the Veteran's TMJ disability does not impact his ability to work. On April 2019 VA-contract temporomandibular disorders examination, the Veteran reported that 2 or 3 times a week his jaw will lock up and last for an hour and he has to massage it. He stated it is hard to chew at times. On range of motion testing, including after 3 repetitions, right and left lateral excursion were each greater than 4 millimeters and no pain was noted on examination. There was evidence of pain with chewing/mastication on both sides. There was no objective evidence of pain on non-weight bearing, bilaterally, nor was there objective evidence of pain on passive range of motion. There also was objective evidence of localized tenderness or pain on palpation of the right joint, but none of the left joint. There was no evidence of crepitus or clicking of joints, bilaterally. There was no additional loss of function or range of motion after 3 repetitions, on either side. Bilateral inter-incisal distance was greater than 34 millimeters. Pain significantly limited functional ability with repeated use over time and with flare-ups, bilaterally. The diagnoses were right and left TMJ dysfunction with bruxism. The Veteran did not require a mechanically altered food diet due to his TMJ disability. The Veteran's TMJ disability does not impact his ability to work. Based on a review of the subjective and clinical evidence, the Board finds that, during the entire rating period on appeal, the Veteran's right and left TMJ dysfunction did not warrant a rating higher than 10 percent pursuant to Code 9905 under either the prior or the amended rating criteria. The evidence does not reflect that the Veteran's disability manifested in inter-incisal range of motion limited to 21 to 30 millimeters; 30 to 34 millimeters of maximum unassisted vertical opening with dietary restrictions to soft and semi-solid foods, as recorded or verified by a physician; or 21 to 29 millimeters of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods. The Board also finds that there is no basis for assigning a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). As noted above, the Veteran has reported increased pain during flare-ups, but he did not describe any additional functional loss or lost range of motion, during a flare-up. The competent medical evidence reflects that the assigned 10 percent ratings properly compensate the Veteran for the extent of functional loss resulting from any such symptoms. Accordingly, the preponderance of the evidence is against assignment of ratings higher than 10 percent for the Veteran's service-connected right and left TMJ dysfunction. 5. Entitlement to an initial rating higher than 70 percent for major depressive disorder The Veteran essentially asserts that his service-connected major depressive disorder warrants a 100 percent rating. Major depressive disorder is evaluated pursuant to the General Rating Formula for Mental Disorders. 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); and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9434. A 100 percent evaluation is warranted if 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. A VA mental disorders examination was conducted in June 2015. A diagnosis of moderate recurrent major depressive disorder was rendered. The examiner summarized the Veteran's level of occupational and social impairment as reduced reliability and productivity. At the time of the examination, the Veteran had been married 7 years and had a 6-month old child. He related also that his father was present in his life. He mentioned having sisters with whom he has poor relationships. He stated he has three friends that he talks to and does things with on occasion. Relevant to his occupational history, he reported that he does not really get along well with others with whom he works. He reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and obsessional rituals which interfere with routine activities. On July 2018 VA-contract mental disorders examination, recurrent major depressive disorder was diagnosed. The examiner summarized the Veteran's level of occupational and social impairment as deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported he was working as a cashier. He stated he often is irritated by his coworkers and will have to leave the area to avoid losing his temper. The Veteran is married and has a daughter. He related that his wife gets upset when he loses his temper. He reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a work-like setting, and suicidal ideation. On behavioral observation, the Veteran was alert and oriented times three. He was dressed casually and appropriately. His gait was unremarkable. His mood was depressed and congruent with his statements. His insight, judgment, and impulse control appeared intact. He stated he often has suicidal ideation without intent. He denied past or current homicidal ideation or plan. He stated he experienced visual hallucinations last June. The examiner further noted that the Veteran has significant difficulty functioning around other people, has difficulty functioning as a team member and feels uncomfortable around others. His sleep is so disrupted that he is usually fatigued at work, making concentration and focus on work assignments difficult. Moreover, he is so depressed that he has difficulty sustaining energy and motivation to complete assignments at work. In this case, there is no evidence the Veteran's service-connected major depressive disorder warrants a 100 percent rating. There is no evidence that he is totally socially impaired, as he still maintains a relationship with his wife and some friends. The Veteran does not pose a threat to himself or others, he has no gross memory deficit. The Veteran has been oriented in three spheres, and he did not demonstrate an inability to perform activities of daily living, as he presented as dressed casually and appropriately. While the Veteran has been depressed and anxious, this did not rise to the level of being considered a danger of hurting himself or others, nor did it manifest as grossly inappropriate behavior. Therefore, the claim for the next higher 100 percent rating is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.