Citation Nr: 1313572 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 06-20 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for chronic jaw disability, claimed as pain and popping. 2. Entitlement to service connection for chronic headaches, to include as secondary to chronic jaw disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from March 1996 to March 2000. This matter comes before the Board of Veterans' (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina. This matter was previously before the Board in July 2010, October 2011, and September 2012, at which time it was remanded for additional development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 In its September 2012 remand, the Board specifically noted that the July 2010 examination report (and subsequent October 2010 addendum) was inadequate because the opinions were based on the premise that the Veteran's molars were extracted in 1998 without complication, and there were no records to indicate any subsequent jaw symptoms or treatment of jaw pain. The Board pointed out that the Veteran submitted an August 2010 correspondence in which he stated that he experienced difficulty swallowing and chewing, loss of hearing, and voice change. He stated that these symptoms began when he had his wisdom tooth pulled. The Board found that the previous examination reports were inadequate because the examiner failed to comment on the Veteran's report of in-service symptoms and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007), The Board remanded the claims so that the examiners could submit addendums in which they commented on the Veteran's report of in-service symptoms. The RO obtained additional opinions in October 2012 and November 2012. However, once again, the examiners failed to comment on the Veteran's report of in-service symptoms such as difficulty swallowing and chewing. The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran's claims for service connection for a chronic jaw disability and for headaches, that have not yet been associated with the claims file. All records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall obtain an addendum to the August 2011, October 2011, October 2012, and November 2012 VA examination reports, preferably from the original examiner. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The examiner is requested to provide an opinion as to whether it is at least as likely as not that any current chronic jaw disability is etiologically related to any incidents of the Veteran's period of active service, including the 1988 wisdom tooth extraction. In doing so, the examiner must consider the Veteran's competent statements as to the onset and continuity of symptomatology (to wit, that he has had jaw symptoms, including difficulty swallowing ever since the 1998 wisdom tooth extraction). See Dalton, 21 Vet. App. at 23 (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service medical records to provide a negative opinion). The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, citing to the lay evidence, as well as, other evidence in the record. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination - for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, which would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). If the original examiner is no longer available to provide the requested opinions, another equally qualified VA examiner shall provide the necessary additional opinions. The need for an additional examination of the Veteran is left to the discretion of the VA examiner. 3. If, and only if, the above examination yields a positive nexus opinion relating the Veteran's current jaw disability to his active service, the RO/AMC should schedule the Veteran for an examination to determine the nature and etiology of any chronic headache disability. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. The examiner is requested to provide an opinion as to whether it is at least as likely as not that a current chronic headache disability began in active service or is the result of a disease or injury in active service. The examiner is also requested to provide an opinion as to whether it is at least as likely as not that any headache disability found on examination was either (a) caused by, or (b) is aggravated (permanently worsened) by the chronic jaw disability. In doing so, the examiner must consider the Veteran's competent statements as to the onset and continuity of symptomatology. See Dalton, 21 Vet. App. at 23. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, citing to the lay evidence, as well as, other evidence in the record. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination - for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, which would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones, 23 Vet. App. at 390. If the original examiner is no longer available to provide the requested opinions, another equally qualified VA examiner shall provide the necessary additional opinions. The need for an additional examination of the Veteran is left to the discretion of the VA examiner. 4. The RO/AMC should then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 5. The RO/AMC should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, 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. 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). _________________________________________________ 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) (2012).