Citation Nr: 1314170 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 06-32 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a jaw disorder, to include temporomandibular joint disorder (TMJ) as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1977 to August 1977 and in the United States Air Force from July 1986 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the benefit sought on appeal. The Veteran submitted a notice of disagreement with this determination in February 2006, and timely perfected his appeal in October 2006. In December 2007, the Veteran testified before the undersigned Veterans Law Judge, via video conference between the North Little Rock RO and the Board's Central Office in Washington, DC. A transcript of that proceeding has been prepared and incorporated into the evidence of record. This claim came before the Board in February 2008, June 2010, and October 2012. On these occasions, the claim was remanded for additional evidentiary development. 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 Unfortunately, further remand is necessary to appropriately fulfill the duty to assist. In the October 2012 remand, the Board noted that the Veteran's representative had claimed that the Veteran's significant service-connected orthopedic disabilities resulted in grinding of the teeth and the TMJ condition. Specifically, the representative noted that a VA examiner reported constant grinding of the teeth, which was most likely the cause of the Veteran's TMJ disorder. It was then noted that the Veteran has significant service-connected orthopedic disabilities and that it has been his contention that the pain form all of these disabilities resulted in the grinding of his teeth and his TMJ condition. See Appellant's Post-Remand Brief, July 26, 2012. In its October 2012 remand, the Board noted that this theory of entitlement to service connection on a secondary basis had not been previously advanced, and instructed that the Veteran should be afforded a VA examination to determine whether the Veteran had a TMJ disability secondary to his service-connected disabilities. The Veteran was afforded such examination in February 2013. The Veteran reported that he had intermittent pain on the left and right, that it hurt to chew, and that his jaw locked at times. The examiner noted that the Veteran had flare-ups that impacted the function of his TMJ that consisted of muscular pain, but also found that the Veteran did not have a TMJ disorder, without providing an explanation for the Veteran's reports of flare-ups and the findings that the Veteran had muscular pain in his jaw. The examiner did not address the Veteran's contentions that the pain from his service-connected disabilities causes him to grind his teeth. In addition, he did not provide any rationale for his opinion that "the service connections that this Veteran has do not influence the improper was relationship of alignment of teeth." The Board notes that, to be considered probative evidence, a conclusion from a doctor or other medical professional must be enhanced by sufficient commentary so as to allow for weighing of that conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that 'a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion.'); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ('The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.'). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be provided to a VA examiner to review the record and provide an opinion as to whether the Veteran has a jaw disability that is caused by or aggravated by his service-connected disabilities. If further examination or testing is needed, this should be undertaken. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should answer the following questions: (a) Does the Veteran have a current disorder of the jaw, including TMJ? In addressing this issue, the examiner should comment on the Veteran's reports of jaw pain and that his jaw locked at times, and the assessment that his pain is muscular in nature, provided by the February 2013 examiner. (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's current jaw/TMJ disorder was caused (in whole or in part) by his service-connected disabilities, including as a result of bruxism due to pain from his service-connected orthopedic disabilities, or stress from his service-connected psychiatric disability? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's current jaw/TMJ disorder has been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected disabilities, including as a result of bruxism due to pain from his service-connected orthopedic disabilities, or stress from his service-connected psychiatric disability? If the Veteran's current jaw/TMJ disorder was aggravated by his as a result of bruxism due to pain from his service-connected orthopedic disabilities, or stress from his service-connected psychiatric disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 2. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, 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). _________________________________________________ J.A. MARKEY 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).