Citation Nr: 1307612 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 11-07 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to a rating in excess of 50 percent for depression. 2. Entitlement to a compensable rating for hypertension. 3. Entitlement to service connection for a jaw disorder, claimed as temporomandibular joint dysfunction (TMJ) and diagnosed as hypermobility. 4. Entitlement to service connection for sleep apnea, to include as secondary to TMJ. 5. Entitlement to service connection for migraine headaches, to include as secondary service-connected hypertension and currently nonservice-connected TMJ. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active service from June 1998 to July 1998 and from April 2001 to February 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran provided testimony at a September 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In an October 2009, a typewritten statement was provided as an attachment to a specific handwritten notice of disagreement received from the Veteran. The attached typewritten statement was a blanket-style notice of disagreement, stating that "[t]his Veteran intends for his attached Notice of Disagreement (NOD) to include all the adjudicative determinations mentioned in the VA's rating decision and any enclosures thereto, except for those, if any, that he specifically states he does not want to appeal." The Federal Circuit has issued an opinion upholding 38 C.F.R. § 20.201, the VA regulation that defines what constitutes a proper notice of disagreement. See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). The regulation requires that a notice of disagreement express disagreement with a determination by the RO and a desire to contest the result. The applicable regulation states that if the Agency of Original Jurisdiction (AOJ) gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201 (emphasis added). The Board finds that the typewritten blanket-style notice of disagreement statement received in October 2009 does not meet the specificity requirements for a notice of disagreement as to issues other than those identified in the Veteran's accompanying September 2009 handwritten statement. The Board finds that the RO has properly identified the issues for which an adequately specific notice of disagreement was received in the Veteran's hand-written September 2009 notice of disagreement; the issues identified in that statement correspond to the issues on appeal set forth on the title page of this document. In this regard, it is of significance to the present appeal that the Veteran did not appeal the denial of service connection for his dental implant. In June 2010 the RO denied the Veteran's claim for service connection for a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU). The Veteran did not submit a notice of disagreement or submit new and material evidence with respect to the claim for a TDIU within one year of notice of the June 2010 rating decision. See 38 C.F.R. § 3.156(b) (new and material evidence-pending claim); 38 U.S.C.A. § 7105 (filing of notice of disagreement and appeal). In January 2012 the RO received a correspondence by which the Veteran sought to "reopen" his claim for a TDIU. GIVEN THE PRIOR FINAL DENIAL OF THE CLAIM FOR A TDIU DURING THE PENDENCY OF THIS APPEAL, THE BOARD FINDS THAT THE MOST APPROPRIATE ACTION IS TO REFER THE NEW CLAIM FOR A TDIU TO THE RO/AMC FOR INITIAL ADJUDICATION, rather than to include it as part and parcel of the currently docketed appeal. See generally Rice v. Shinseki, 22 Vet. App. 447 (2009) (although a TDIU claim is part of an increased rating claim when such claim is raised by the record, "[t]his is not to say that, just because TDIU is raised in the context of an initial adjudication of a claim, in an appropriate case, the Court could not review a schedular rating assigned by the Board even though the Board also remanded or referred an issue as to entitlement to TDIU."); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-rating claim). 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 At a June 2009 VA examination the examiner was requested to provide an opinion as to whether the Veteran has TMJ. The examiner responded that "I agree that the patient has hypermobility of the jaw," and provided his clinical examination findings in support of this conclusion. The examiner further opined that there was a less than 50 percent probability that the Veteran's in-service dental treatment caused his jaw problem. However, the examiner did not express an opinion as to whether the Veteran's TMJ began during active service, regardless of whether it was caused by his in-service dental treatment. On this point, the Veteran indicated to the examiner that his symptoms started in December 2005, during active service. The dental records show that in December 2005 he was status post implant placement, but a separate entry in the treatment records indicates that he was also seen for maxilla and mandibular impressions. This appears to correspond to testimony at the Veteran's RO hearing that he had experienced cramps in his mouth and it would get stuck open at times, for which he was treated during service with top and bottom bite guards, which he had continued to wear for his jaw problems through the present time. As a result, a clarifying medical opinion is required to ascertain whether the Veteran's TMJ or hypermobility at least as likely as not was present during service, to include in December 2005. Accordingly, a supplemental medical opinion will be requested. See 38 C.F.R. § 4.2 (examination reports-corrective action). Additionally, private records of treatment in March and April 2012 indicate that the Veteran's headaches may be related to his hypertension. A May 2010 VA examination report is to similar effect. A medical examination and opinion as to whether the Veteran's headaches are caused or aggravated by his service-connected hypertension is therefore required. See 38 U.S.C.A. § 5103A(d). Also, the March and April 2012 private treatment records reflect that the Veteran's hypertension has worsened since the time of his most recent VA examination. The blood pressure readings are higher and the recent treatment records describe the condition as malignant. A new VA examination and opinion to ascertain the current severity of his hypertension is required. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. Since the Veteran's sleep apnea and headaches are claimed as secondary to his TMJ, his claims for service for connection for headaches and sleep apnea are inextricably intertwined with the claim for service connection for TMJ. See Gurley v. Peake, 528 F.3d 1322 (2008) (remand of intextricably intertwined claims generally warranted for reasons of judicial economy even in absence of administrative error). At his September 2012 Board hearing, the Veteran described what would appear to be worsening symptoms of psychiatric disability that could support a higher rating than 50 percent, including thoughts of suicide, episodes of unprovoked violence four to five times per week, and problems maintaining personal hygiene. By contrast a May 2010 VA psychiatric examination report indicates a clean general appearance, no episodes of violence, and no suicidal thoughts. As a result, a new VA examination to determine the current severity of the Veteran's depression is warranted. Snuffer, 10 Vet. App. at 403. Also, at his September 2012 Board hearing, the Veteran described ongoing treatment related to the disabilities at issue in this appeal. The RO/AMC should seek to obtain the relevant treatment records for association with the claims file. See 38 U.S.C.A. § 5103A(a)-(c). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all relevant records of VA and non-VA health care providers who have treated his sleep apnea, hypertension, headaches, depression, or TMJ but that may not have been previously obtained by the RO. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The most recent records of VA treatment associated with the claims file are from February 2011. A recent VA medications list indicates that he has continued to receive treatment relevant to his appealed claims from that time forward. The records sought should include all relevant records of treatment from Tripler Army Medical Center, including at the family medical clinic, that have not been previously received. The recent records received from Tripler Army Medical Center at this time are from March and April 2012. The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Once all available relevant medical records have been received, the AOJ should schedule the appellant for a VA psychiatric examination for the purpose of determining the current severity of his service-connected depression. The examiner should take a relevant history from the Veteran as to the recent and current severity of his psychiatric symptoms. The examiner should provide a Global Assessment of Functioning (GAF) score, with a fully reasoned explanation for the score assigned. 3. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA examination for the purpose of determining the current severity of the Veteran's hypertension, and to determine whether the Veteran's headaches are related to service or are caused or chronically worsened by service-connected hypertension. The RO/AMC should send the claims file to the examiner for review. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the Veteran's headaches began during service, or are caused or chronically worsened by his hypertension. In conducting the examination, the examiner should review records of treatment from Tripler Army Medical Center, from March to April 2012, indicating that the Veteran has malignant hypertension and that his headaches may be a symptom of his hypertension. A May 2010 VA examination report also describes the Veteran's headaches in association with the history of hypertension. The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 4. The claims file should be sent to the VA examiner who conducted the Veteran's June 2009 dental examination, or, if he is not available, another appropriate clinician. The examiner should indicate whether the diagnosis of hypermobility of the jaw encompasses or is associated with a diagnosis of TMJ. If not, the examiner should indicate whether his June 2009 the report is intended to indicate that the Veteran has TMJ. The examiner should provide an opinion as to whether the Veteran's current hypermobility of the jaw and/or TMJ was present during active service. In rendering this opinion, the examiner should review a December 14, 2005, entry in the Veteran's dental service treatment records, which indicates that maxilla and mandible "alg." impressions were taken. The Veteran has asserted that this was accomplished in the process of providing him upper and lower bite guards to treat his symptoms of problems with motion of his jaw and cramping of the jaw, and that he has continued to use the bite guards for his symptoms since his discharge from active service. VA treatment records indicate that the Veteran was fitted for an occlusal guard by the taking of maxillary and mandibular alginate impressions in October 2006. At the VA treatment in October 2006 the Veteran indicated his symptoms began toward the end of his period of active service. The October 2006 VA diagnostic impression was myofascial pain secondary to jaw position and nocturnal parafuntional habit (bruxism)-exacerbated by poor sleep posture. The examiner should indicate whether the Veteran's jaw dysfunction as described in the VA examination report (including TMJ and/or hypermobility) is at least as likely as not caused or aggravated (chronically worsened) by any service-connected disease or injury. The Veteran's current service-connected disabilities are hypertension, depression, degenerative disc disease of the thoracolumbar spine, a left knee strain, left Achilles tendonitis, right Achilles tendonitis, and a healed stress fracture with metatarsalgia of the right foot. If the examiner finds that the Veteran's jaw dysfunction was present during active service or is caused or chronically worsened by any service-connected disability, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea is caused or chronically worsened by his TMJ. The Veteran asserts that treatment of his sleep apnea has been rendered less effective as a result of his TMJ. He indicates that he cannot wear his CPAP mask properly because of his inability to keep his mouth closed at night. The examiner should provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 5. Readjudicate the issues on appeal. If any benefit sought remains denied, provide the Veteran and his representative a Supplemental Statement of the Case and an appropriate period of time for response. 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 Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These matters 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). _________________________________________________ H. N. SCHWARTZ 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).