Citation Nr: 0810322 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-38 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression. 2. Entitlement to service connection for fibromyalgia. 3. Entitlement to service connection for irritable bowel syndrome. 4. Entitlement to an initial evaluation in excess of 10 percent for temporomandibular joint (TMJ) dysfunction. REPRESENTATION Appellant represented by: Jeffrey Benton, Attorney ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from June 1979 to June 1983, and from January 1991 to May 1991. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating actions of the VA Regional Office in St. Louis, Missouri that granted service connection for TMJ dysfunction, effective from October 31, 2003. The veteran has appealed for a higher disability rating. Service connection was denied for depression, fibromyalgia and irritable bowel syndrome. The Board points out that as the veteran is appealing the initial assignment of disability rating for TMJ dysfunction, the issue has been framed as shown on the title page of this decision. See Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Following review of the record, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran asserts that the symptoms associated with her service-connected TMJ dysfunction are more disabling than reflected by the currently assigned disability evaluation and warrant a higher rating. She also contends that she has depression, fibromyalgia and irritable bowel syndrome that are also of service onset for which service connection should be established. Initially, the Board points out that review of the record discloses that the veteran has not been provided notice of the Veterans Claims Assistance Act (VCAA) of 2000, Pub. L. No.106-475, 114 Stat.2096 (2000) with respect to the issue of entitlement to an initial rating in excess of 10 percent for TMJ dysfunction. The VCAA and its implementing regulations require that VA provide specific notice to claimants regarding information needed to complete an application for benefits, as well as specific notice regarding information or evidence required to substantiate a claim. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Accordingly, the case must be remanded as to this matter in order to comply with the statutory requirements of the VCAA. Review of the claims folder discloses that in her claim received in October 2003, the appellant indicated that she received Social Security disability. In a letter dated in February 2004, the RO acknowledged that Social Security payments had been verified. However, it is not shown that those records were requested. The Board observes in this regard that there is a lack of any clinical data between 1983 and 1998. The United States Court of Appeals for Veterans Claims (Court) has held that VA must obtain Social Security Administration decisions and records which may have a bearing on the veteran's claim. Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). The Board is of the opinion that information contained in the Social Security determination file may be pertinent to the claims under consideration. As such, the evidence on which the veteran's Social Security disability award was based should be requested and associated with the claims folder. The record documents that the veteran was admitted to the St Louis VA hospital in April 1998 for psychiatric disability. It was noted at that time that she had been admitted from outpatient services, and had been hospitalized three times in 1997. It was reported that she had worked as a nurse until 1995. The clinical data from 1997 and any previous to those are not of record. The record thus indicates that relevant evidence in support of the veteran's claim may exist or could be obtained from a VA facility. See Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). The Board also notes that the veteran has received regular VA outpatient treatment from April 1998. With the exception of some VA clinic notes dated between April and May 2006, the most recent records date through October 12, 2005. As noted previously, there are no clinical records in the claims folder prior to 1998. Therefore, VA outpatient treatment records dating from 1983 to April 1998, and from October 13, 2005 to the present should be requested and associated with the file. Additionally, the record reflects that the veteran was most recently afforded VA evaluation of the service-connected TMJ dysfunction in September 2004. In statements in the records, she indicates that this disability is more severely disabling. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran indicates that a service-connected disorder has worsened since the last examination, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability has increased in severity); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Since this case is being remanded for other reasons, the appellant will also be afforded a current examination in this regard. The fulfillment of the VA's statutory duty to assist the appellant includes requesting VA examination when indicated, conducting a thorough and contemporaneous medical examination when indicated, and providing a medical opinion which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following actions: 1. Review the claims file and ensure that all actions required by the Veterans Claims Assistance Act of 2000 (VCAA) are completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007); and the Court's holding in Vazquez-Flores v. Peake, No. 05- 0355 (U.S. Vet. App. January 30, 2008) and Quartuccio are fully met and complied with respect to all issues on appeal since the most recent duty-to-assist letters in 2003 and 2004. She should also be notified regarding the criteria for rating a disability or establishing an effective date should service connection be granted. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Contact the Social Security Administration and obtain a copy of the agency decision in the veteran's case, and the medical documentation relied upon for the award of disability benefits. 3. Contact the veteran by letter and ask her to identify all medical providers who have treated her for disabilities claimed on appeal. After securing any necessary release, the RO should then obtain copies of the medical records, if not on file. 4. Retrieve a copy of all of the veteran's VA treatment records dating from 1983 to April 1998, and from October 13, 2005 to the present and associate them with the claims folder. 5. The veteran should be scheduled for a VA dental examination to assess the current severity of the service-connected TMJ dysfunction. The claims folder and a copy of this remand must be made available to and be reviewed by the examiner prior to completion of the examination report. The examination report must indicate whether or not the claims folder was reviewed. Any indicated studies should be performed, and clinical findings should be reported in detail. The examiner should specify the range of motion for the inter- incisal movement (in millimeters) and the range of the lateral excursion movement (in millimeters). If limited motion is demonstrated, an opinion as to any increased functional loss due to painful use, weakness, excess fatigability, and/or incoordination of such affected part should be provided. 6. The veteran must be given adequate notice of the examination, to include advising her of the consequences of failure to report under 38 C.F.R. § 3.655 (2007). If she fails to appear for the examination, this fact should be noted in the file. 7. The RO should ensure that the medical report requested above complies with this remand. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned to the examiner for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After taking any further development deemed appropriate, the RO should re-adjudicate the issues on appeal. If the benefits are not granted, the appellant and her representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).