Citation Nr: 0813829 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 98-04 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the residuals of an acquired malocclusion and tempomandibular joint dysfunction (TMD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from October 1995 to July 1997 and on active duty for training from February 1988 to July 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The veteran's claim was remanded by the Board in May 2003 to give the veteran the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In July 2004, the veteran perfected an appeal with respect to a claim for an increased rating for a cervical spine disability. The veteran stated on her September 2002 notice of disagreement that she was seeking a 60 percent rating for her cervical spine disability. By a June 2007 rating action, she was granted a 60 percent rating for her cervical spine disability, effective from February 2000. As noted by the June 2007 rating action, this was a full grant of benefits sought, and the issue of an increased rating for a cervical spine disability is no longer in appellate status. 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 maintains that her malocclusion and tempomandibular joint dysfunction were aggravated by service. In October 2002, the Board obtained a Veterans Health Administration (VHA) opinion. The opinion indicated that the veteran's malocclusion and TMD existed prior to service and that the increase in severity of the veteran's TMD during service was due to the natural progress of the disease. However, the VHA opinion also stated that the presence of a cervical spine injury often leads to changes in posture, and it is not uncommon for such alterations to change the positioning of the jaw, which may increase TMD. As noted above, the veteran has service connection and a 60 percent rating in effect for a cervical spine disability. The Board notes that where a veteran's service-connected disability causes an increase in a non-service connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service- connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Since the VHA physician has indicated that the veteran's TMD could be aggravated by the veteran's service- connected cervical spine disability and since no physician has been asked to examine the veteran and provide an opinion as to whether the veteran's service-connected cervical spine disability aggravates the veteran's malocclusion and TMD, the Board finds that the veteran must be provided a VA medical examination. The appellant is hereby notified that it is the appellant's responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). Accordingly, the case is REMANDED for the following action: 1. Request that the veteran provide the names and addresses of all medical providers who have provided her treatment for her TMD disability. After obtaining any necessary authorizations, request copies of the veteran's medical records that have not already been obtained. 2. Obtain the veteran's VA treatment records dated from January 2005 to present. 3. When the above actions have been accomplished, the veteran should be provided a VA examination to determine the nature and etiology of the veteran's TMD disability. The examiner should indicate whether there has been aggravation of the veteran's TMD disability as a result of the service-connected cervical spine disability, and if so, specify the degree of aggravation (i.e., increase in disability). See Allen v. Brown, 7 Vet. App. 439 (1995). In regard to aggravation, a distinction should be drawn between any temporary exacerbation of symptoms as opposed to an increase in the level of disability beyond natural progression. The claims file and a copy of this remand must be made available to the examiner prior to the review. Reasons and bases for all opinions expressed should be provided. 4. Upon completion of the above requested development, reconsider the veteran's claim. If the benefit sought on appeal is not granted, the veteran and her representative should be provided a supplemental statement of the case and be afforded the appropriate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MARY GALLAGHER 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).