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michaelr5343

Secondary Sc Claims While Still In Appeal Process

Question

My original PTSD claim is in the appeal process at the RO, hopefully soon to get a bump from 70% to 100%. Recently, I was diagnosed with bruxium (teeth grinding) due to nightmares. Obviously, I want to add this to the list of service connected disabilities. However, my reading suggests any additions to my claim at this time might have a slowing effect in the adjudication of my original claim. On the other hand, I think the claim of bruxium adds to the totality of circumstances which evidences the exacerbation of my condition and thus, bolsters my original claim. What are your thoughts and/or experiences in this area?

If yes to submitting claim now, what is the best way to introduce this claim to the RO? (I'm in the process of completing the Dental DQB with my civilian dentist and I'm holding a completed VA Form 21-526b, as well as other supporting documentation)

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Bruxism is a symptom, not a rateable condition. There is no disease diagnosis code for it, nor rating criteria. It is well documented, widely accepted that bruxism may be caused by PTSD or other stress disorders. TMJ disorders are dental disabilities that are compensable. If you develop a TMJ disorder in the future, damage to the jolnt may well have been caused by the bruxing, and you could file for TMJ disorder secondary service connection.

This isn't my opinion. It is from a recent presentation by the Chief of Quality Assurance for Medical Disability Evaluation, VBA Central Office.

Edited by VADDS

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VADDS:

Thanks for responding to my post and the good information. I researched a little more and find there seems to be conflicting BVA case law related to SC and bruxism. The first awarded the appellant a SC based on evidence provided by the psychiatrist and the dentist. (Citation: 0307941, 04/25/2003). The second, and most current, denied the appellant for precisely the reasons you stated in your response. (Citation Nr: 1145541, 11/14/2011). It seems it can be reasonably inferred, presuming the absence of further development by the BVA, that the most current decision would be controlling in future cases. I was encouraged by the verbiage of the Board in the 2011 case:

"In making this decision the Board acknowledges the clinical evidence at a minimum raises a reasonable doubt that there is a relationship between the appellant's posttraumatic stress disorder and his bruxism. The Board, however, is not free to ignore or make exceptions to laws passed by Congress. 38 U.S.C.A. § 7104© (West 2002). The law is very specific as to the criteria for granting service connection for dental disorders, and eligibility has not been shown in this case. Perhaps the law should be changed, however, "the fact that Congress might have acted with greater clarity or foresight does not give (the Board) carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do." United States v. Locke, 471 U.S. 84, 95 (1985). Where the law is dispositive, the claim should be denied because of the absence of legal merit. Sabonis. Simply put, in this case, the Board has no alternative but to deny the appellant's appeal.
" (Judge D. Brown, BVA)

It appears the law is ripe for revision in this area. Regardless, I renew my my original question:

When, if at all, and how, is it best way to introduce a new SC illness/injury when the original claim is at the RO on appeal awaiting a new rating decision?

Edited by michaelr5343

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A couple more thoughts just on the bruxism part of your post:

1. BVA appeal decisions do not establish precedence. They apply only to the appeal under review, based on a host of variables individual to each appeal. When the issue of PTSD and bruxism first appeared, there was a lot of confusion and mis-information on both the VHA andVBA sides of the house. The presentation I referenced reflects the evolution of a consenus of opinion on how VBA manages bruxism claims.

2. The "favorable" citation establishes what I said in my earlier message is now widely accepted: PTSD can cause bruxism. To establish service connecton for it, the MH provider treating the vet only needs to document it in the vet's medical record as part of the PTSD notes. It does not require a VBA rating decision to establish service connecton for it. What current US Code does not do is provide for compensation of bruxism, whether primary or secondary. Nor does an individual's PTSD related bruxism create eligibliity for treatment of it.

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A couple more thoughts just on the bruxism part of your post:

1. BVA appeal decisions do not establish precedence. They apply only to the appeal under review, based on a host of variables individual to each appeal. When the issue of PTSD and bruxism first appeared, there was a lot of confusion and mis-information on both the VHA andVBA sides of the house. The presentation I referenced reflects the evolution of a consenus of opinion on how VBA manages bruxism claims.

2. The "favorable" citation establishes what I said in my earlier message is now widely accepted: PTSD can cause bruxism.

To establish service connecton for it, the MH provider treating the vet only needs to document it in the vet's medical record as part of the PTSD notes. It does not require a VBA rating decision to establish service connecton for it. What current US Code does not do is provide for compensation of bruxism, whether primary or secondary. Nor does an individual's PTSD related bruxism create eligibliity for treatment of it.

Do you have CFR's or USC's that support the bolded above ?

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The undertone of your question is that you are familiar with the CFRs, and I'm inventing something not contained in them. What I posted is latest VHA and VBA Policy, based on interpretation of the regulations as they have existed for years, applied to a relatively new issue.

The policy directive to not grant ratings for non-compensable dental conditions was contained in a letter from the VBA's Director of Compensation to all VAROs, about 2 years ago. I've cut and pasted the letter in VBN.

The CFRs contain the rating schedules, including the 9900, aka dental series. Bruxism is not one of the compensable dental conditions. So, unlike say TMJ disease, there is no legal authority to grant a disability rating percentage to it, and confer Class I dental eligibility.

Nor is it in any other rating series. There are no criteria to assess the severity of it, there is no disease diagnosis code for it. The damage to the teeth from bruxism is a visible side effect of a PTSD symptom: abnormal neuro-muscular activity associated with the high stress state. The issue is not whether or not PTSD is associated with bruxism. There is much literature to support that it is. The issue is that the damage to the teeth is not rateable.

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