Citation Nr: 1312809 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 05-00 120A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bruxism, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active military service from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the current appeal, and specifically in May 2006, the Veteran testified at a videoconference hearing conducted before the undersigned Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c) (West 2002 & Supp. 2012). A transcript of the testimony has been associated with the Veteran's claims file. In light of the Veteran's claim that his bruxism was secondary to his posttraumatic stress disorder (PTSD), consideration of the bruxism claim was deferred in the February 2007, April 2008, January 2010 and March 2011 Board decisions pending additional development on the PTSD claim and subsequent readjudication by the RO. In a August 2012 remand, the Board remanded the Veteran's petition to reopen his claim for service connection for bruxism for additional procedural development, and specifically instructed the agency of original jurisdiction (AOJ) to (1) provide a corrective Veterans Claims Assistance Act of 2000 (VCAA) notice letter to the Veteran, to include a discussion of the information and evidence necessary to support a claim for secondary service connection; and (2) to secure the Veteran's Social Security Administration (SSA) records. In August 2012, the Appeals Management Center (AMC) sent an appropriate VCAA notice letter, which included information regarding the type of evidence necessary to substantiate a secondary service connection claim. The Veteran's SSA records were also obtained and associated with his claims file. The AMC then readjudicated the issue on appeal and issued a Supplemental Statement of the Case (SSOC) in January 2013. As such, the Board finds that the AOJ completed the development requested in the August 2012 Board Remand and complied with the remand instructions. Stegall v. West, 11 Vet. App, 268 (1998). To establish jurisdiction over the claim, the Board must first consider whether new and material evidence has been received to reopen the claim. See 38 U.S.C.A. §§ 5108, 7105 (West 2002). The Board must proceed in this fashion regardless of the AOJ's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, the Board finds that new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for bruxism. Thus, the Board is granting this aspect of the Veteran's appeal. The Board notes that the Veteran filed a motion to advance his appeal on the docket as a result of his dental condition and self-described "dental duress." This motion was dated in December 2012. The undersigned has denied the Veteran's motion to advance his appeal on the docket, and the Veteran should receive a letter to that effect once the Board's administrative team acts on it. (The decision below reopens the previously denied claim of service connection for bruxism. The underlying claim of service connection is addressed in the remand that follows the decision below.) FINDINGS OF FACT 1. By a December 2002 rating decision, the RO denied the Veteran's claim of service connection for bruxism on the basis that the evidence did not show that such was incurred in, or aggravated, by military service or had existed continuously since separation from service. 2. The evidence received since the December 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bruxism, and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The December 2002 rating decision that denied service connection for bruxism is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2012). 2. The evidence received subsequent to the December 2002 rating decision is new and material, and the claim for service connection for bruxism is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a)(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the current appeal, the Veteran maintains that his bruxism is secondary to his PTSD. In this regard, the Board notes that service connection for this disorder was first denied by the RO in the December 2002 rating decision. The Veteran was notified of this decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed become final. See 38 U.S.C.A. § 38 U.S.C.A. § 7105(d)(3). The Veteran, however, now seeks to reopen his claim. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim that has been disallowed. 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a). In November 2004, the Veteran requested that his claim for service connection for bruxism be reopened. In order to reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen in this case, new and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness.). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4) , which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." Although it appears that the RO did not reopen the Veteran's claim for service connection for the above-referenced claim, the Board is not bound by that determination and is, in fact, required to conduct an independent analysis in claims involving final rating decisions. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this regard, using the guidelines discussed below, the Board finds that the Veteran has submitted new and material evidence. Accordingly, the claim of entitlement to service connection for bruxism will be reopened. As previously noted, the Veteran's claim for bruxism was last considered and denied in the December 2002 rating decision. The evidence associated with the Veteran's claims file at the time of the December 2002 rating decision includes, but is not limited to, the Veteran's DD 214 and service treatment records; his May 2002 application seeking service-connected compensation for his claimed disorder; the March 2002 letter issued by the Veteran's treatment providers at the VA Medical Center (VAMC) in Brecksville, Ohio; VA treatment records dated from November 2000 to November 2002; and the Veteran's own lay assertions. In the March 2002 letter, the Veteran's psychiatrist S.M., M.D., and psychologist, J.C., Ph.D., noted that the Veteran was being followed at the Brecksville VAMC for outpatient psychotherapy and medication management related to his PTSD diagnosis. It was also noted that the Veteran presented with multiple anxiety symptoms including 'bruxism' for which he was receiving treatment at the VAMC Dental Department. In the December 2002 rating action, the RO concluded that there was no evidence to show that the Veteran's bruxism was related to service, nor any evidence showing that bruxism was incurred in, or aggravated by military service. Based on the evidence of record, the RO denied the Veteran's claim for service connection for bruxism on a direct and secondary basis. The evidence associated with the Veteran's claims file subsequent to the December 2002 rating decision includes, but is not limited to, the May 2006 hearing transcript; VA treatment records issued at the VAMCs in Brecksville and Cleveland, Ohio, and dated from January 2001 to April 2012; the July 2005 SSA decision granting the Veteran's claim for disability benefits as well as the medical records relied upon concerning that determination; lay statements submitted by the Veteran's brother and fellow servicemen; and the Veteran's own lay assertions. At the May 2006 hearing, the Veteran testified that his therapist, J.C., related his teeth grinding to his post-service PTSD symptoms, namely his anxiety and nightmares. According to the Veteran, J.C. noted that the Veteran's psychiatric symptoms cause him to become tense and consequently grind his teeth. See May 2006 Hearing Transcript, p. 8. In the August 2012 letter, the Veteran's brother, J.O, indicated that the Veteran had not been able to sleep well, and had been making noises with his teeth ever since he returned from service. In another letter also dated in August 2012, the Veteran's friend and former serviceman, D.G., noted that he met the Veteran while serving in Vietnam, and noticed even then that the Veteran was always grinding his teeth. After reviewing the record, the Board finds that the additional evidence received since the final December 2002 rating decision is new and material within the meaning of 38 C.F.R. § 3.156(a). The majority of this evidence is certainly new in that it was not previously of record. In particular, the Board finds the lay assertions submitted in support of the Veteran's claim to be new and material evidence within the provisions of 38 C.F.R. § 3.156. The August 2012 statements issued by the Veteran's brother and former fellow serviceman provide direct accounts of having witnessed the Veteran grind his teeth during and since his period of service. These statements were not of record at the time of the December 2002 rating action. While the Veteran himself has attributed his bruxism to his PTSD, the December 2002 rating decision not only denied service connection for bruxism on a secondary basis, but also on direct basis--finding that the Veteran's bruxism was neither incurred in or aggravated in service. While the Veteran indicates that his bruxism was discovered many years after service, statements submitted by his brother and fellow serviceman attest to the fact that behavior leading to a subsequent diagnosis of bruxism first appeared in service and soon thereafter in conjunction with some of his psychiatric symptoms, and has existed since his separation from service. The Board finds that these statements relate to an unestablished fact necessary to substantiate the claim. Thus, the Board finds that new and material evidence has been presented to reopen the previously denied claim of service connection. This aspect of his appeal is, therefore, granted. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the underlying claim for service connection for this disorder can be addressed. ORDER New and material evidence having been submitted, the claim of service connection for bruxism is reopened, and to this limited extent, the appeal is granted. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes assisting the Veteran in procuring service treatment records and other relevant treatment records, and providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran is currently service connected for PTSD and contends that his bruxism arose as a result of the service-connected PTSD VA treatment records dated from November 2000 to March 2002 reflect the Veteran's complaints of teeth grinding activity as well as a diagnosis of bruxism. During a February 2002 individual psychotherapy treatment session, the Veteran expressed his worries regarding his night time teeth grinding activities. The treatment provider noted that the Veteran needed to start wearing a mouth guard. In a March 2002 letter, the Veteran's psychiatrist, Dr. M., and psychologist, J.C, noted that the Veteran was being treated at the Brecksville VAMC for outpatient psychotherapy and medication management related to his diagnosis of PTSD. It was also noted that the Veteran presented with multiple anxiety symptoms, including 'bruxism' for which he was evaluated by the VAMC Dental Department. According to the Veteran's treatment providers, the VAMC Dental Department concluded that the Veteran has significant abrasion consistent with grinding activity and recommended the fabrication of a night guard to aid in the correction of the problem. Subsequent VA treatment records dated from 2002 to 2012 reflect the Veteran's complaints of continuing problems as a result of his teeth grinding, as well as an ongoing assessment of bruxism. During a December 2003 telephone conversation, the Veteran reported to feel very stressed, and added that his level of teeth grinding had increased. VA outpatient records dated in February and April 2012 indicate that the Veteran wears a mouth guard to help treat his bruxism. As previously noted, secondary service connection requires (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As discussed above, the Veteran is currently service connected for PTSD, and medical records reflect a diagnosis of bruxism. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and the service-connected disability. While the March 2002 letter alludes to a possible connection between the Veteran's bruxism and some of his psychiatric symptoms (characterizing his bruxism as a symptom of anxiety), there is nothing in the objective medical evidence reflecting a definite nexus between the Veteran's service-connected PTSD and his bruxism. At this juncture, the Board finds that the evidence of record is insufficient to render a determination regarding the etiology of the Veteran's bruxism. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As the record is unclear as to the origin of the Veteran's bruxism, the Veteran should be afforded a VA examination to determine in particular whether his bruxism is related to his service-connected PTSD, or is otherwise related to his military service. Additionally, in the March 2002 letter, the Veteran's healthcare providers noted that the Veteran had been evaluated at the VAMC Dental Department for his bruxism. However, there are no treatment records reflecting care and treatment for the Veteran's dental condition during this time period. In the December 2012 statement, the Veteran stated that he had visited the dentist five times in the previous six months due to broken crowns, bridges and teeth. However, the majority of the Veteran's VA treatment records focus on treatment provided for his psychiatric problems. As such, on remand, an effort should be made to obtain any records pertaining to dental treatment the Veteran received from 2000 to 2002; and from 2011 to the present . See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's records from the Brecksville and/or Cleveland, Ohio VAMCs pertaining to dental treatment provided for his bruxism from 2000 to 2002; and from 2011 to the present. Efforts to obtain the records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each facility from whom they are sought and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2011). All such available documents should be associated with the Veteran's claims folders. 2. After obtaining the treatment records to the extent they are available, the Veteran should be scheduled for a VA examination to determine the etiology of bruxism. The claims folder, a copy of this remand, and any records on Virtual VA must be made available to, and reviewed by, the examiner in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. Following a review of the record and an examination of the Veteran, the examiner should specifically indicate whether the Veteran continues to experience bruxism. The examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that bruxism had its onset during military service or is otherwise causally or etiologically related to the Veteran's period of military service in the 1960s. The examiner should also express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that bruxism was caused or aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected PTSD. The examiner must provide a thorough and well-reasoned explanation for all opinions provided. The medical reasons for accepting or rejecting the statements of continued symptoms since military service should be set forth in detail. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After completing the above, and any other development deemed necessary, readjudicate the issue of entitlement to service connection for bruxism. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified by the originating agency; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs