Citation Nr: 1122126 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 09-18 951A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for temporomandibular joint disorder (TMJ or TMD). 2. Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to July 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In April 2011, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The issues of entitlement to an increased rating for an acquired psychiatric disability and service connection for a seizure disorder/tremor, Barrett's Esophagus and gastroesophageal reflux disorder (GERD) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A review of the record reflects that the Veteran has filed a notice of disagreement, dated February 2007, with respect to the September 2006 denial of a compensable rating for bilateral hearing loss. It does not appear that a statement of the case has been issued on this issue. Accordingly, the Board is required to remand this issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Regarding the TMJ/TMD claim, it is noted that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2010). In this case, the Veteran contends that his TMJ is related to the assault he incurred while on active duty or, in the alternative, that his TMJ is aggravated by his service-connected acquired psychiatric disorder. The Board notes that the Veteran's service treatment records indicate that he was beaten by three men in June 1970 and suffered a tongue laceration, as well as an abrasion and hematoma around the right eye. Additionally, an April 2011 statement from a dentist indicates that the Veteran's TMJ was likely caused by facial trauma, a parafunctional habit such as clenching or grinding of the teeth, or a combination of these things. As there is some indication of an in service incident, and there is indication of current TMJ, a VA examination with opinion as to the relationship between his claimed TMJ to service is required to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Veteran has submitted a National Institutes of Health article that grinding and clenching of the teeth may be caused by stress and an inability to relax. This is also suggested in the April 2011 doctor's letter noted above, as it references nervous habits such as teeth clenching and grinding. The Veteran's service treatment records indicate that he had anxiety/nervousness and he was subsequently service-connected for such condition at discharge. As mentioned, the Veteran now contends that his acquired psychiatric disorder aggravates his TMJ. Thus, he should be afforded an additional VA examination to determine if there is aggravation and, if so, to determine a baseline for the TMJ. The Board notes that the Veteran and his representative contended during hearing testimony that the service dental records had not been associated with the claims file. The Board notes in this regard that the Veteran's service treatment records were associated with the claims file in July 1972. The records were requested from Columbus Air Force Base in Columbus, Mississippi. The form accompanying the folder indicated that health records were included but did not indicate that dental records were provided as well. The RO, in an April 2006 e-mail, requested the Veteran's dental records from the Records Management Center (RMC). The RMC replied that no further treatment records for the Veteran were located. However, the Board finds that the RO/AMC should additionally request the dental records from the National Personnel Records Center (NPRC) and Columbus Air Force Base. Accordingly, the case is REMANDED for the following action: 1. The RO should undertake all actions required by 38 C.F.R. § 19.26, including issuance of a statement of the case, so that the Veteran may have the opportunity to complete an appeal on the issue of a compensable rating for bilateral hearing loss (if he so desires) by filing a timely substantive appeal. 2. Request the Veteran's dental records from the NPRC and from Columbus Air Force Base. If no dental records are located, this should be noted in the claims file and communicated to the Veteran. 3. Next, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine if the Veteran's TMJ is related to any incident of service or is caused or aggravated by his service-connected acquired psychiatric disorder and if so, the extent of the aggravation. The claims folders must be made available to and reviewed by the examiner. Based upon the examination results and the review of the claims folders, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the Veteran's TMJ is related to his in-service facial trauma or is secondary to is caused or aggravated by symptomatology associated with the Veteran's acquired psychiatric disorder. "Aggravation" is defined as a permanent worsening beyond the natural progression of a disease/injury. The rationale for all opinions expressed must also be provided. 4. Thereafter, the RO/AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, then he and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folders are returned to the Board for further appellate action. The Veteran 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. 2010). _________________________________________________ ERIC S. LEBOFF 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) (2010).