BVA9500038 DOCKET NO. 93-01 417 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Entitlement to service connection for bruxism secondary to service-connected PTSD. 2. Entitlement to an effective date earlier than February 27, 1990, for the grant of service connection for a post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from August 1968 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) from a June 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which granted service connection for PTSD and assigned a 50 percent rating effective from February 27, 1990; the veteran appeals for an earlier effective date. The veteran also appeals from a May 1992 decision which denied service connection for bruxism (grinding of the teeth) secondary to PTSD. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has bruxism as a direct result of his PTSD. He also claims an effective date earlier than February 27, 1990 for service connection for PTSD, and in this regard he argues there was clear and unmistakable error in a 1982 RO decision which denied service connection. He asserts that the 1982 rating decision was clearly and unmistakably erroneous because there was evidence of PTSD at that time; a finding of no PTSD on a 1982 VA examination represented a misdiagnosis, as shown in part by later medical evidence; the RO failed in its duty to assist him in 1982; and the RO failed to resolve reasonable doubt in his favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports secondary service connection for bruxism; and that the preponderance of the evidence is against the claim for an effective date earlier than February 27, 1990, for the grant of service connection for PTSD. FINDINGS OF FACT 1. The veteran has bruxism which is the result of his service- connected PTSD. 2. The veteran submitted his initial compensation claim for service connection for PTSD in January 1982. 3. In July 1982, the RO denied service connection for PTSD, and the veteran did not timely appeal following notification of that determination. 4. The July 1982 rating decision denying service connection for PTSD was reasonably supported by the evidence then of record and prevailing legal authority; the decision was not undebatably erroneous. 5. The veteran did not submit an application to reopen his claim for service connection for PTSD until February 27, 1990, and that claim was supported by new and material evidence; the RO granted service connection effective from that date. CONCLUSIONS OF LAW 1. Bruxism is proximately due to or the result of service- connected PTSD. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.310(a) (1993). 2. The RO's July 1982 decision denying service connection for PTSD was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). 3. The correct effective date for service connection for PTSD is February 27, 1990, being the date of receipt of a reopened claim supported by new and material evidence; the criteria for an earlier effective date have not been met. 38 U.S.C.A. §§ 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The veteran served on active duty in the Marine Corps from August 1968 to February 1970. This included combat service in Vietnam during which the veteran received shrapnel wounds. The service medical records show no psychiatric disorder, and the psychiatric system was found to be clinically normal at the February 1970 service separation examination. The service medical records contain no references to bruxism. A May 1970 VA examination noted no psychiatric or dental complaints or abnormal findings. A June 1970 RO decision granted service connection for various disorders including residuals of multiple shrapnel wounds. In January 1982, the veteran filed his initial claim for service connection for "delayed stress." In an accompanying letter, he reported his Vietnam combat experiences, as well as post-service depression and other psychiatric symptoms which had required counseling with a lay therapist. He said that his stress from Vietnam service had manifested itself physically by grinding his upper front teeth. A February 1982 statement was received from [redacted] who reported that he worked as a lay therapist, originally in a drug addiction program and later in a community mental health program for former mental patients. He said he met the veteran in 1976 and provided therapy to him for several years, although the veteran rarely paid for the therapy and was considered a friend and co-worker who lived with him for a few weeks at a time on three different occasions. Mr. [redacted] stated that he was currently on "the path back to graduate school to finish a Ph.D. in the History of Consciousness." He stated the veteran had suffered enormously as the result of his experience in Vietnam and represented a classic case of post-Vietnam syndrome. In 1982, the veteran submitted copies of correspondence which related to employment termination in 1976 and 1978. He also submitted two undated copies of newspaper articles concerning his activities as a Vietnam war veteran, copies of some of his own writings concerning Vietnam, and a 1980 letter from the Marine Corps listing his authorized military decorations. In April 1982, a VA social worker filed a report of a social and industrial survey for PTSD. The veteran was interviewed and several individuals were contacted for information on the veteran's experiences before, during, and after service. The report notes the veteran's psychological counseling from a lay therapist ([redacted]) and notes that a former girl friend reported that the veteran had a habit of grinding his teeth during his sleep. The VA social worker reported that the veteran's teeth were noticeably worn down in the front which the veteran attributed to his habit of grinding his teeth during his sleep. She stated the veteran was totally concerned with the issue of Vietnam and seemed incapable of moving on with his life until there was some resolution, or acceptance by society, that "Vietnam was a lie." She added that it was unlikely that the veteran was employable due to his inability to handle authority, or to work in a system to which he is strongly opposed. On a June 1982 VA examination to determine the presence of possible PTSD, the examiner reported that he reviewed the April 1982 VA social and industrial survey and a packet of documents provided by the veteran. The examiner reviewed the veteran's pre-service, service and post-service history. Following examination, the psychiatrist reported the following impression: In this particular individual, I am confronted with evidence of a depressive neurosis which is probably long-standing. The evidence at hand does not suggest the diagnosis of [PTSD], but rather, this veteran's understanding of the Vietnam experience explains the emotional turbulence that bothers him. This does not mean that this man was not psychologically injured to a certain extent by his experiences in combat as well as his experience of the duplicity people meet in life. However, I believe that a more predominating psychiatric illness was present in a man particularly susceptible to whatever stresses he experienced over there. Incidentally, this individual stated that if he isn't awarded a diagnosis of [PTSD] and given recognition by the VA, he is going to fight this through all of the courts to the last of his energies. I tend to believe that he will, indeed, engage in such a struggle, as he will perceive his justification for fighting the system. The final diagnoses by the psychiatrist included depressive neurosis and borderline personality. On June 1982 VA dental examination to determine "tooth wear due to anxiety," it was reported that the examination showed significant wear of the teeth, especially involving the occlusal and incisal surface of the maxillary teeth. It was reported the veteran's oral hygiene was poor and that restorations also exhibited wear along with the teeth. The examining dentist reported that it was difficult to pinpoint anxiety as the cause of tooth wear, but it was well-known that it could, indeed, be an important contributing cause of bruxism, if not the sole one. In July 1982 the RO denied service connection for PTSD and informed the veteran. He did not appeal. On February 27, 1990, the veteran filed an application to reopen his claim for service connection for PTSD, based on new and material evidence. With his application he submitted a September 1989 private psychiatric evaluation which noted current findings as well as findings since treatment began in September 1988. The evaluation noted the veteran was losing his upper teeth due to grinding them from the severe internal stress he was experiencing. The diagnoses of the psychiatric examination was that the veteran had PTSD secondary to his military experiences in Vietnam; in a borderline personality. With his application to reopen his claim, the veteran also submitted a February 1990 summary of context by a social worker at a Vet Center concerning the period from August 1989 to February 1990. The social worker reported the veteran suffered from PTSD since his war experiences in Vietnam. Also submitted with his application to reopen his claim, the veteran submitted a September 1989 statement from an assistant program director at a VA PTSD program concerning a September 1986 Vet Center counseling session. It was reported the veteran had several symptoms of PTSD. The veteran was examined by a board of VA psychiatrists in May 1990. There was a diagnosis of PTSD (as well as a diagnosis of a mixed personality disorder including obsessive-compulsive histrionic traits). In June 1990, the RO granted service connection for PTSD, along with a 50 percent evaluation, effective from February 27, 1990. On a VA dental examination in June 1991, the veteran's upper teeth showed severe bruxism. The dentist said that this severe loss of teeth could have been caused by the loss of the posterior teeth (molars) or some other reason. It was noted that people who lost their posterior teeth were forced to chew their anterior teeth which are not constructed for chewing. The dentist added that nervous bruxism could be a contributing factor. He said that he could not tell if tooth loss (extractions) was due to bruxism. On an August 1991 VA examination, the physician reported that it was not possible to state without a shadow of a doubt that the veteran's bruxism was secondary to the PTSD, but that "clearly, bruxism is a symptom of significant stress and anxiety which he clearly suffers from as a part of his PTSD." He added that it would be harder to propose and prove that the bruxism was not related to PTSD. The doctor said that the veteran's bruxism may well be related to PTSD, although it clearly cannot be completely established. In November 1991, a statement was received from James Webb, D.M.D., who reported the veteran had been his dental patient since 1988. It was reported the veteran had extreme bruxism and other dental problems. Dr. Webb included copies of his dental records showing the work he had done on the teeth since 1988. In April 1992 a VA dentist (Chief of Dental Service) reviewed the veteran's records with regard to the claim for service connection for bruxism due to PTSD. It was noted that many of the veteran's dental problems were not caused by bruxism; loss of teeth was primarily due to neglect and poor maintenance; and wear due to bruxism was a secondary factor. The dentist opined that it would be speculative to attribute the veteran's bruxism to PTSD, but it would also be difficult or impossible to rule out a causal relationship. It was noted that bruxism could be associated with almost any disability but without absolute scientific proof. On an August 1992 VA examination, the diagnoses were PTSD and a mixed personality disorder. Bruxism with dental destruction was also noted. A September 1992 VA social and industrial survey for PTSD reported a history of bruxism causing the veteran to have problems with his teeth such as tooth decay, infection and pain. In October 1992, Dr. Webb reported that the veteran had extreme bruxism which was felt to be the principal factor in the loss of teeth. In June 1992, a VA doctor reported that it appeared the veteran's bruxism was secondary to PTSD, although this could not be absolutely proven. II. Analysis The veteran's claims on appeal are well grounded; that is, they are not inherently implausible. 38 U.S.C.A. § 5107(a). The facts relevant to the issues have been properly developed, and the statutory obligation of the VA to assist the veteran in the development of his claims is satisfied. Id. A. Service Connection for Bruxism The service medical records do not suggest the veteran had bruxism, nor does the veteran allege that bruxism started during service, but rather that it is related to his service-connected PTSD. Secondary service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). It is not disputed the veteran has bruxism, although the various health professionals who have reviewed the case have differing opinions on whether it would be speculative to attribute the bruxism to his service-connected PTSD. With regard to the professional opinions the Board finds there is an approximate balance as to whether bruxism is caused by PTSD or whether it is not. In such case, the benefit of the doubt is given to the veteran. 38 U.S.C.A. § 5107(b). Accordingly, secondary service connection for bruxism is appropriate. B. Entitlement to an Effective Date Earlier than February 27, 1990 for Service Connection for PTSD The veteran initially claimed service connection for PTSD in January 1982, and this was denied in a July 1982 RO decision which the veteran did not timely appeal. See 38 U.S.C.A. § 7105. On February 27, 1990 the RO received an application to reopen the claim based on new and material evidence. See 38 U.S.C.A. 5108. The RO subsequently granted service connection for PTSD effective with the date of receipt of the reopened claim, February 27, 1990. The veteran claims an earlier effective date, alleging clear and unmistakable error (CUE) in the 1982 RO rating action. If CUE is found in the 1982 rating action, service connection would be effective from the date the VA received the 1982 claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.105(a), 3.400(k). However, if there was no CUE in the 1982 decision, the correct effective date is February 27, 1990, being the date the VA received the application to reopen the claim based on new and material evidence. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q),(r). CUE is a very specific and rare kind of error; it is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Damrel v. Brown, 6 Vet.App. 242, 245 (1994); Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993); Russell v. Principi, 3 Vet.App. 310, 313-314 (1992). The veteran urges the Board to consider evidence received subsequent to the 1982 RO decision, when determining whether that decision was based on CUE, but that may not be done. Focusing on the evidence available to the RO in 1982, and the prevailing legal authority at the time, it is readily apparent that the RO's adverse action was within the bounds of sound judgmental discretion, regardless of whether or not some adjudicators might have reached a different result. All service and post-service evidence was before the RO when it considered the case. While there was some evidence favorable to the veteran, the most notable evidence against his claim was the absence of a physician's diagnosis of PTSD, and the 1982 VA examination at which a psychiatrist found no PTSD. In this regard, it is axiomatic that the existence of a claimed condition must be shown as a prerequisite to service connection. The correct facts, as they were known at the time, were before the RO, and the governing law was correctly applied. The veteran's current allegations of error (an inadequate examination, failure in the duty to assist, failure to apply reasonable doubt) are all general in nature and he has not shown that such "errors," even if true, would have compelled a different result. Fugo 6 Vet.App. at 44, Allin v. Brown, 6 Vet.App. 207, 214 (1944). The veteran essentially disagrees with how the facts were weighed and evaluated by the RO in 1982, but this is insufficient to support his CUE claim. The RO's 1982 decision was not undebatably erroneous, in fact or law, and it may not be reversed under the stringent tests for CUE. It follows that service connection for PTSD may be granted only from the date of the later reopened claim supported by new and material evidence. The RO has assigned the correct effective date of February 27, 1990, and the veteran is not entitled to an earlier effective date. ORDER Secondary service connection for bruxism is granted. An earlier effective date for service connection for PTSD, prior to February 27, 1990, is denied. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.