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Secondary Sc Claims While Still In Appeal Process


michaelr5343

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 (see edit history)
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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 (see edit history)
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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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I respectfully suggest that you missed Carlie's point.


There are many of us hard core VA claimants here and a link to a VA Case law citation or directive or Fast Letter or part of M21- 38 CFR, etc etc is often worth a thousand words.


It is VA Fast Letter # 10-42 OF October 12,2010,regarding the latest dental condition policy of VA.




You are right and we have had a few SC TMJ vets here and there some who succeeded at the BVA , as SCed due to their PTSD, and I would think bruxism , as a non ratable SC condition, could well lead to SC and ratable TMJ down the road.



http://www.webmd.com/oral-health/guide/temporomandibular-disorders

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Berta:

It is perfectly appropriate and reasonable to file for secondary connection for TMJ, if the TMJ was caused by PTSD associated bruxism. That was not the issue under discussion. What I stated was that it will be inappropriate for VBA to rate and grant service connection for bruxism, until and unless the VA requests a rule change to to the CFRs to create a disease diagnosis code for bruxism, add it to the 9900 Series, and establish criteria to rate the severity of it.

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http://www.va.gov/vetapp11/Files3/1123620.txt

ORDER

Service connection for bruxism is granted.

http://www.va.gov/vetapp03/Files/0307941.txt

Upon consideration of the overall evidence, the Board finds

that the record contains credible supporting evidence that

the veteran's bruxism is proximately due to the service-

connected PTSD. Accordingly, service connection is

warranted.

ORDER

Entitlement to service connection for bruxism, as secondary

to service-connected PTSD, is granted.

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Berta:

It is perfectly appropriate and reasonable to file for secondary connection for TMJ, if the TMJ was caused by PTSD associated bruxism. That was not the issue under discussion. What I stated was that it will be inappropriate for VBA to rate and grant service connection for bruxism, until and unless the VA requests a rule change to to the CFRs to create a disease diagnosis code for bruxism, add it to the 9900 Series, and establish criteria to rate the severity of it.

I assisted a veteran that was granted SC for bruxism, we tied it into PTSD and TMJ. I believe he was awarded 20%. It is possible.

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I guess I'll never get the answer. The question is now moot for me now since the board increased me to 100%.

congratulations on your award! Are you T & P 100% or TDIU? If you should find the need to submit another claim, use VA FM 21-526ez (fully developed claim) , submit all supporting documentation with it. These claims are being adjudicated within 90 days.

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meghp0405:

Thanks for responding. I was awarded 100 percent on Dec 21 with a future appointment in 6 years. I'm going to complete a separate exam/opinion which speaks to the permanent nature of my PTSD, couple that with any other supporting documentation (SSDI Award letter) etc. and file a NOD/Request for De Novo review. Hopefully the DRO will adjudicate it at their level in St. Petersburg and not escalate it to the BVA.

I found the form you mentioned and planned on sending it in as well

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I assisted a veteran that was granted SC for bruxism, we tied it into PTSD and TMJ. I believe he was awarded 20%. It is possible.

If the vet was awarded 20%, it was for the TMJ disorder, secondary to PTSD associated bruxism. There are no rating criteria for bruxism, there is no disease diagnosis code for bruxism. It is literally impossible to assign a percentage to it. Bruxism is now widely accepted to be caused or worsened by PTSD. TMJ disorders may be exacerbated by bruxism. VBA is granting bruxism/PTSD related secondary TMJ service connection. As always, the percentage is based on ROM and the Deluca Factors' impact.

The BVA decision posted here made a ruling that the bruxism was service connected. The BVA decision was probably the end point of a process that began 3-4 years before the decision, when there was still controversy about the connection between PTSD and bruxism. That issue is settled: bruxism is associated with PTSD. A rating decision is not required. It is a symptom, like insomnia or night terrors. De facto, it is service connected.

What changed for the vet as a result of the BVA ruling? The vet can't be compensated for the tooth damage. The vet did not become eligible for VA dental care. If bruxism ever becomes a compensable dental disability, the vet would have to undergo a C&P exam with rating criteria applied, along with every other vet claiming a disability for PTSD associated bruxism. But first, the VA rules would have to be amended to create a disease code for it, decide what rating series it belongs in, and establish rating criteria to assess the severity of it.

Here is the bottom line: If a vet with PTSD and bruxism develops a TMJ disorder, file for the TMJ secondary to PTSD. That is now a straight shot. Filing for bruxism alone will get you nowhere

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"What I stated was that it will be inappropriate for VBA to rate and grant service connection for bruxism, until and unless the VA requests a rule change to to the CFRs to create a disease diagnosis code for bruxism, add it to the 9900 Series, and establish criteria to rate the severity of it."

Yes, you are correct VADDS, I got way off track on this one. Sorry.

It is like a vet claiming hyperlipidemia-a non ratable symptom ,but one that could indicate evidence of diabetes or heart disease,

Edited by Berta (see edit history)
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Berta:

Another dental example is tooth decay caused by dry mouth, which can result from medications, and most especially after head and neck radiation for cancer. There is currently no way to compensate a veteran for damage to teeth that results from the medical treatment for another disease.

The VA actually proposed rule changes last year to establish a disease diagnosis code for salivary gland disease. One of the proposed rating criteria is an increase in dental decay. A 10% rating has been proposed for dental decay caused by either primary salivary disease, or secondary to treatment of a service connected medical condition.

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  • Content Curator/HadIt.com Elder

Another overlooked issue is bruxism causing migraines

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This is a request for advice. I am service conntected and rated at 40 percent. 30 percent is for PTSD, my dentist claims that my teeth are being damaged as a result of bruxism and willing to provide me with a letter state that. My question is it worth the trouble of askiing the VA to reopent my case and consider bruxism and if so what approach should I take. While I don't consider my PTSD to be serious enough to require the VA to appoint a fudicary I am concered that they might consider that as part of the process. Thanks in advance for your kind advice.

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