Citation Nr: 1306342 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-38 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for jaw condition to include an anterior open bite and temporomandibular joint condition (TMJ). 2. Entitlement to service connection for a dental condition for treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from August 1970 and August 1973. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The hearing before the undersigned Veterans Law Judge was held at the RO in July 2012. The Veteran, with the Veterans Law Judge's permission, did not attend the hearing due to health issues. The Veteran's representative provided evidence on the Veteran's behalf. A transcript of the hearing has been associated with the claims file. The Board notes that the issue of entitlement to service connection for a neck disability was included by the RO in the statement of the case of July 2010. However, in the VA Form 9 of September 2010, the Veteran restricted the appeal to the issues of entitlement to service connection for TMJ and a dental condition for purposes of treatment. As the Veteran did not perfect an appeal with regard to the issue of entitlement to service connection for a neck disability, the Board has no jurisdiction over that issue. A review of the Virtual VA paperless claims processing system does not reveal any additional documents that are not present in the paper claims folder that are pertinent to the current appeal. The Board has recharacterized the issue of entitlement to service connection for TMJ to more broadly include entitlement to service connection for a jaw disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). This issue now includes the issue of entitlement to service connection for an anterior open bite for which the Veteran submitted a claim in July 2009, even though that issue has not been adjudicated by the RO. Given the Veteran's arguments regarding the issue of service connection for TMJ and for an anterior open bite, the Board finds that the Veteran is arguing similar disabilities and symptomatology and the issues are best considered as one. 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 seeks entitlement to service connection for a jaw disability and a dental condition for treatment purposes. After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the claim. Service treatment records show that the Veteran had six teeth extracted while in service. The Veteran was afforded a VA examination in March 2009. At the time, the Veteran reported being treated in the early 1990's at the CHAS Clinic, the Spokane ENT, and by Dr. Rubinstein at the University of Washington. A review of the evidence of record shows that these records have not been associated with the claim file. In order to ensure due process, the RO should attempt to obtain these records and associate them with the claim file. In a May 2009 letter, the Veteran's private dentist stated that in his initial evaluation, the Veteran has an anterior open bite which may be contributing to many of his symptoms. Regarding any relationship between his bite and service he stated that having so many teeth removed in service may have contributed to his long term problems. While the Veteran was afforded a VA examination, the same did not discuss the anterior open bite and whether, if the Veteran has an anterior open bite, the same is related to service. As the issue of entitlement to service connection for a jaw disability has now been determined to include an anterior open bite, the Board finds that a new examination and opinion that address the nature and etiology of the anterior open bite is needed prior to deciding the claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran submit all the names, dates of treatment, and addresses of any private physician who treated him for any of his claimed dental and jaw conditions. Upon receipt of the information from the Veteran, the RO/AMC should request the identified records and associate them with the claim file. All efforts to obtain the identified records should be clearly documented in the claim file. If any of the identified records are not available, the reason for their unavailability should be clearly documented in the claim file. 2. After the above development has been completed, the RO/AMC should schedule the Veteran for a dental examination to determine the nature and etiology of any jaw disability the Veteran may have. The claim folder should be made available to the examiner for their review. The examiner must document the review of the claim file in the examination report. All disabilities of the jaw, including TMJ and an anterior open bite, should be confirmed. In addition, all dental disabilities should be confirmed. For all identified disabilities, the examiner must provide an opinion as to whether it is at least as likely as not that the identified disability is due to service, to include the tooth extractions in service. A complete rationale for any opinion rendered must be provided. If no dental and/or jaw disability is identified, the examiner must explain the reason why a diagnosis was not made. 3. Thereafter, the RO/AMC should perform any additional development necessary, and then readjudicate the Veteran's claims for service connection for a jaw disability and for dental problems for treatment purposes. If the claims remain denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review, if in order. 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. 2012). _________________________________________________ MICHAEL LANE 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) (2012).