Citation Nr: 1204530	
Decision Date: 02/06/12    Archive Date: 02/16/12

DOCKET NO. 06-24 255	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1. Entitlement to service connection for a digestive disorder (claimed as acute gastroenteritis). 

2. Entitlement to service connection for a torn left hamstring / thigh injury. 

3. Entitlement to service connection for a heart disorder (claimed as a heart murmur). 

4. Entitlement to service connection for residuals of a left elbow injury. 

5. Entitlement to service connection for a right heel / ankle disorder. 

6. Entitlement to service connection for a dental disorder, to include residuals of a bilateral subcondylar osteotomy and subtotal odontectomy. 




ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran served on active duty from August 1977 to August 1981 and from November 1981 to June 2001. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. 

The Board remanded this case in August 2008, June 2009, and March 2010 for further development. After completion of this development by the Agency of Original Jurisdiction (AOJ), the case has been returned to the Board for further appellate consideration. In the same August 2008 and March 2010 decisions, the Board denied several other claims that were on appeal. These issues are no longer before the Board. 

The RO granted service connection for left ankle, right knee, and right leg disorders in June 2011, subsequent to development requested by the Board's March 2010 remand. Since the Veteran has not since appealed either the initial rating or effective date assigned for these issues, they are not on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 


The Board is denying the claims for service connection for a digestive disorder, a torn left hamstring / thigh injury, a heart disorder, residuals of a left elbow injury, and a right heel / ankle disorder. To comply with due process requirements, the remaining service connection claim for a dental disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

There is no probative evidence of current disorders or current residuals linked to in-service injuries and treatment for digestive problems, a torn left hamstring / thigh injury, a heart murmur, a left elbow injury, and a right heel / ankle injury. 


CONCLUSIONS OF LAW

1. There is no probative evidence of a current digestive disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

2. There is no probative evidence of current residuals of a torn left hamstring / thigh injury. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

3. There is no probative evidence of a current heart disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

4. There is no probative evidence of current residuals of a left elbow injury. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

5. There is no probative evidence of a current right heel / ankle disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

VA's Duty to Notify and Assist

Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in January 2004, March 2006, December 2008, February 2009, August 2009, and March 2010. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his service connection claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the August 2009 letter, VA also informed the Veteran of what "alternative" sources he can submit in place of certain missing STRs. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).  

The March 2006 VCAA letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 

As to timing, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If not timely or inadequate, such errors can be effectively "cured" by providing any necessary VCAA notice and then and readjudicating the claim. That is, a statement of the case (SOC) or supplemental SOC (SSOC) can readjudicate the claim so that the intended purpose of the notice is not frustrated and the appellant is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by a subsequent SOC or SSOC. Prickett, 20 Vet. App. at 376. 

The timing error was cured. After providing additional VCAA notice in March 2006, December 2008, February 2009, August 2009, and March 2010, the RO readjudicated the claims in the latter SOC and SSOC. Any timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376; see Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). 

With respect to the duty to assist, the RO has secured service treatment records (STRs) dated from 1977 to 1997 and service personnel records (SPRs). The Veteran has not received any VA treatment. The Veteran was also afforded several September 2010 VA examinations with medical opinions addressing the etiology of his impairments. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Overall, the VA examinations and opinions were thorough, supported by reasons and bases, based on a review of the claims folder, and supported by the evidence of record. For his part, the Veteran has submitted personal statements. He has not identified or submitted any private medical evidence.  

It was determined that a portion of the Veteran's STRs dated from 1997 to 2001 to include his retirement examination at discharge and a possible Medical Evaluation Board (MEB) proceeding are unavailable and missing. When STRs are lost or missing, the U.S. Court of Appeals for Veterans Claims (Court) has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

The Veteran asserts that due to the disorders on appeal, a MEB in 2001 recommended his discharge from active duty. The RO initiated several requests to obtain the Veteran's missing STRs, to include the alleged MEB proceeding, but was met with negative responses from the National Personnel Records Center (NPRC) and the Records Management Center (RMC) in February 2004, October 2008, and August 2009. In a December 2009 Formal Finding Memorandum, the RO indicated that all procedures to obtain missing in-service STRs were correctly followed, and that all efforts had been exhausted, such that further attempts would be futile. The RO described in thorough detail all the efforts it had undertaken. In addition, in an August 2009 VCAA notice letter, the Veteran was advised about alternative sources of evidence he could submit to substantiate his claims. In the same letter, the Veteran was asked to provide the location where the MEB proceeding was conducted, but he failed to respond to the letter. "[T]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
  
All methods were exhausted in attempting to obtain the missing STRs dated from 1997 to 2001, which are unavailable for consideration. The Board finds no basis for further pursuit of these records, as such efforts would be futile. 38 C.F.R. § 3.159(c)(2), (3). In light of the efforts discussed above, VA has met its heightened obligation to satisfy the duty to assist. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 

The RO/AMC also substantially complied with the Board's August 2008, June 2009, and March 2010 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, pursuant to the remands, the RO/AMC sent the appellant a corrective VCAA letter discussing alternative sources of evidence, attempted to secure the Veteran's missing STRs dated from 1997 to 2001 from the NPRC and RMC, requested that the Veteran provide the location where his MEB was conducted, offered him a DRO hearing, and afforded him several VA examinations with opinions to determine the existence and etiology of the disorders at issue. The RO/AMC has substantially complied with the Board's instructions. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). 

The Merits of the Claims 

The Veteran contends that he has a current digestive disorder, current residuals of a torn left hamstring / thigh injury, a current heart disorder, current residuals of a left elbow injury, and a current right heel / ankle disorder. He dates the onset of these disorders to injuries or treatment that occurred during his military service. He asserts that as a result of the disabling effects from these disorders, an in-service MEB in 2001 recommended his discharge from active duty. See January 2004 claim.

Upon review of the evidence of record, the Board denies the appeal for service connection for a digestive disorder, a torn left hamstring / thigh injury, a heart disorder, residuals of a left elbow injury, and a right heel / ankle disorder. Because there is no probative evidence of current disorders or current residuals linked to his in-service injuries and treatment, the claims will be denied. 

Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). 

In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 

Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. 

In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007). But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. See also Savage v. Gober, 10 Vet. App. 488, 498 (1997).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 

As to a digestive disorder, STRs document that the Veteran was treated for acute gastroenteritis on several occasions in May 1981. An August 1981 separation examination from his first period of service revealed gastritis that existed prior to service. He was also treated for viral syndrome and gastroenteritis in 1986 and 1987. STRs are otherwise negative for a digestive disorder. 

As to a torn left hamstring / thigh injury, STRs document that the Veteran was treated for a left leg torn hamstring after a softball injury in May 1988. He was also treated for a left thigh contusion and pulled left thigh muscle after a softball injury in July 1994. He was given physical therapy. Subsequently, in November 1994, he reported persistent pain in the left thigh. Mild tenderness was assessed. STRs are otherwise negative for a left hamstring / thigh disorder.   

As to a heart disorder, STRs document a history of a heart murmur in a June 1999 record. No prophylaxis was required. STRs are otherwise negative for a heart murmur or other heart disorder. There is no clinical testing in his STRs that revealed any heart disorder.      

As to residuals of a left elbow injury, upon induction into service in June 1977, no left elbow symptoms were reported or objectively noted at examination. STRs document that the Veteran was treated for contusion of the left elbow after he hurt his left elbow playing basketball in February 1980. An August 1981 separation examination from his first period of service revealed that the Veteran originally dislocated his left elbow prior to service in 1973. This had required surgery, pins, and a cast at that time. A November 1982 STR examination was negative for any evidence of a left elbow disorder. STRs are otherwise negative for a left elbow disorder.        

As to a right heel / ankle disorder, STRs document that the reported injuring his right heel in a basketball game in December 1980. The Veteran was again treated for a right heel spur or plantar fasciitis after a basketball injury in May and June of 1995. He reported right heel pain for several months in 1995. An August 1995 STR noted that orthotics were working well in dealing with the right heel pain. STRs are otherwise negative for complaints or a diagnosis of a right heel / right ankle disorder.           

The Veteran asserts that as a result of the disabling effects from these disorders, an in-service MEB in 2001 recommended his discharge from active duty. See January 2004 claim. However, in an August 2009 VCAA notice letter, the Veteran was advised about alternative sources of evidence he could submit to substantiate his claims. In the same letter, the Veteran was asked to provide the location where the MEB proceeding was conducted, but he failed to respond to the letter. Significantly as to the Veteran's contention that he was considered for or underwent MEB proceedings, his report of separation from the Armed Forces (DD Form 214) does not indicate that he was separated for medical reasons. Instead, it indicates that the Veteran was retired in June 2001 after serving approximately 23 years of active service - i.e., the Veteran completed more service than was required to be qualified for military retirement. 

Regardless, the Veteran has never specifically alleged continuity of symptomatology for any of the disorders on appeal. He has never specifically asserted or described continuous symptoms for any of his alleged disorders since discharge in 2001. Post-service, the medical and lay evidence of record does not demonstrate continuity of symptomatology for any of his in-service disorders since service. 38 C.F.R. § 3.303(b).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is now well-settled that in order to be considered for service connection, a claimant must first have a present disability. In Brammer, 3 Vet. App. at 225, the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In the absence of any probative evidence of current disorders or residuals of in-service treatment and injuries, service connection cannot be granted for any of the disorders on appeal. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. The Veteran has not submitted or identified any post-service treatment for the disorders at issue. Also, in post-service VA medical examinations dated in October 2007 and September 2010, there is no probative evidence of any of the disorders at issue. 

As to a digestive disorder, a September 2010 VA stomach examiner assessed that the Veteran recovered from the episodes of GI problems he experienced during service in the 1980s. He has not required any additional or ongoing management. The Veteran asserted recent stomach symptoms, but no current residuals were found, and X-rays of the abdomen were normal. An earlier December 2007 VA stomach examiner also assessed that there were no residuals of any in-service treatment. All of this provides strong evidence against the existence of a current digestive disorder. 

As to a torn left hamstring / thigh injury, a September 2010 VA muscle examiner assessed that there are no ongoing related residuals to his in-service problems. The examiner also noted there was no current treatment for any left thigh disorder - probative evidence against the existence of a current left hamstring / thigh disorder. 

As to a heart disorder, a September 2010 VA heart examiner assessed that no current heart murmur was found at the evaluation. An X-ray revealed a normal heart and chest. The examiner also noted there was no current treatment, no hospitalizations, and no evidence of heart disease - probative evidence against the existence of a current heart disorder. 

As to residuals of a left elbow injury, a September 2010 VA joint examiner assessed there were no ongoing residuals from the Veteran's preservice dislocation of his left elbow or his in-service treatment. No current symptoms were noted. An X-ray of the left elbow was normal - probative evidence against the existence of a current left elbow disorder. 

Similarly, as to a right heel / ankle disorder, a September 2010 VA joint examiner assessed there were no current ongoing residuals from the Veteran's in-service treatment. No current symptoms were noted. X-rays of the right ankle and right calcaneus were normal. 

The Veteran does not therefore have the above noted disorders which he claims. The September 2010 VA examinations were thorough, based on objective, clinical testing, supported by explanations, based on a review of the claims folder, and supported by the evidence of record that failed to reveal any post-service treatment or complaints for the disorders at issue, with the exception of the stomach, which has already been decided by a prior Board decision as to a hernia.  

With regard to lay evidence, the Veteran is competent to report purported symptoms of his disorders at issue. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469. However, for many of the disorders at issue, the Veteran has failed to report any current symptoms. In addition, the Veteran in certain instances can be competent to testify to the fact that symptoms he experienced in service are the same that he currently manifests. Davidson, 581 F.3d at 1316. However, after clinical examinations, there is no probative evidence indicating that the Veteran has a chronic disorder for any of the issues on appeal, nor has an underlying disability been noted which competent medical evidence has identified as causing any symptoms. See generally Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) and Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability).





Accordingly, the preponderance of the evidence is against service connection for a digestive disorder, a torn left hamstring / thigh injury, a heart disorder, residuals of a left elbow injury, and a right heel / ankle disorder, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for a digestive disorder (claimed as acute gastroenteritis) is denied. 

Service connection for a torn left hamstring / thigh injury is denied. 

Service connection for a heart disorder (claimed as a heart murmur) is denied.

Service connection for residuals of a left elbow injury is denied.

Service connection for a right heel / ankle disorder is denied. 


REMAND

For the dental disorder issue on appeal, the Board's March 2010 remand directives have not been completed. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to insure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. 

In the March 2010 remand, the Board instructed the RO/AMC to schedule the Veteran for a VA dental examination to determine the etiology of the any dental disorder the Veteran has. 

The Veteran was afforded a VA dental examination in September 2010. The VA examiner assessed a current diagnosis of temporomandibular joint disorder. However, the VA examiner failed to address whether this current disorder was related to the Veteran's in-service November 1977 bilateral subcondylar osteotomy and a subtotal odontectomy. The VA examiner failed to provide an opinion as to etiology. Instead of returning the claims folder to the same September 2010 VA examiner for an addendum, the RO/AMC scheduled the Veteran for yet another VA examination in July 2011 to which he failed to appear. 

The claims folder will therefore be returned to the September 2010 VA examiner to provide an addendum opinion, and if that examiner is not available, the Veteran will be scheduled for a new VA dental examination. 

Accordingly, the case is REMANDED for the following action:

1. Arrange for a VA addendum opinion with the VA dental examiner who conducted the September 2010 VA examination. If that examiner is no longer available, or otherwise deems necessary, the Veteran will be afforded a new VA examination to be conducted by an appropriately qualified clinician. The purpose of the examination is to determine whether the Veteran's current temporomandibular joint disorder is related to his in-service November 1977 bilateral subcondylar osteotomy and a subtotal odontectomy. 

The following considerations will govern the obtaining of the addendum by the September 2010 VA examiner, or, if required, as to any new examination:

(a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand.

(b) If the examiner finds a clinical or medical basis for corroborating or discrediting the history as provided by the Veteran he or she must so state.

(c) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is requested to provide a complete rationale for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. 

(d) If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 

(e) The examiner must provide a medical opinion answering the following question: 

(i) Is the Veteran's current temporomandibular joint disorder related to his military service, to include his in-service November 1977 bilateral subcondylar osteotomy and a subtotal odontectomy? In rendering this opinion, the examiner must consider whether improper alignment of the teeth (malocclusion) can lead to joint dislocation. The examiner must also address whether there is any lost masticatory surface, and if so, indicate whether it is restorable by suitable prosthesis.

2. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

3. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the dental issue on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran an opportunity to respond. 

The Veteran is advised that failure to cooperate by reporting for VA examination without good cause may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2011). 

Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

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).

These claims 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. 2011).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs