Citation Nr: 1316076	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  09-15 101	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the residuals of a jaw injury, and if so, whether the reopened claim should be granted.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Havelka, Counsel






INTRODUCTION

The Veteran's active naval service extended from November 1980 to July 1989.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that denied reopening of the Veteran's claim for service connection for residuals of a jaw injury.  Although the RO subsequently determined that new and material evidence had been submitted to reopen the claim, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.

The reopened claim for service connection for residuals of a jaw injury is addressed in the REMAND that follows the ORDER section of this decision. 


FINDINGS OF FACT

1.  The RO denied the reopening of the claim for service connection for the residuals of a jaw injury in a December 2004 rating decision; the Veteran was notified of this decision in January 2005, but did not perfect an appeal to this decision or submit any pertinent evidence within the appeal period. 

2.  Evidence received after the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record, addresses unestablished facts necessary to substantiate the claim, and raises the reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

New and material evidence has been received to reopen the claim for service connection for the residuals of a jaw injury.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence means existing evidence not previously received by agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed 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."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Factual Background and Analysis

The RO denied the reopening of the Veteran's claim for service connection for the residuals of a jaw injury in a December 2004 rating decision.  He was notified of this decision in January 2005.  The Veteran filed a timely notice of disagreement in June 2005 and he was provided a Statement of the Case in May 2006.  In July 2006, the Veteran filed his substantive appeal but limited the appeal to another issue.  He did not perfect his appeal with respect to the issue of whether new and material evidence had been submitted to reopen the claim for service connection for the residuals of a jaw injury..  

The evidence of record at the time of the previous denial included the Veteran's service treatment records, and a January 1990 VA Compensation and Pension examination report.  Service treatment records reveal that the Veteran did incur an injury when he was struck in the jaw in January 1982.  The January 1990 VA examination report indicates that a history of injury to the jaw with muscle spasms on occasions was diagnosed.

No pertinent evidence was received within the appeal period following the December 2004 rating decision.  The evidence received after the appeal period includes VA medical treatment records, and a VA examination report.  Specifically, recent VA treatment records reveal diagnoses of temporomandibular joint (TMJ) syndrome with symptoms of difficulty with biting and chewing along with facial pain.  A March 2009 VA dental examination report confirms the diagnosis of TMJ syndrome.  This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim.  Specifically the evidence establishes the presence of a current disability of the jaw which had been absent from the record on prior adjudication.  Therefore, this evidence is new and material and reopening of the claim for service connection for the residuals of a jaw injury is warranted.


ORDER

As new and material evidence has been received, reopening of the claim for service connection for the residuals of a jaw injury is granted.


REMAND

The March 2009 VA dental examination report indicates a current diagnosis of TMJ syndrome along with a negative medical opinion which indicates that it is less likely than not that the current disability is related to a jaw injury during service.  The narrative of the examination report indicates that the patient, "claims that his jaw pain is due to being struck in the jaw (January 1982).  No records of treatment were found for this injury."  This statement is patently incorrect.  The Veteran's service treatment records contain treatment records dated January 20 and 22, 1982, which specifically show treatment for the injury.  Also, there are two service department X-ray reports dated January 20 and 21, 1982.  Moreover, while the January 1990 VA examination report shows that a jaw disability was diagnosed by history only, the X-ray examination performed in connection with that examination disclosed an abnormality of the mandible that was thought to represent a healed fracture.  

The medical opinion expressed in the 2009 Compensation and Pension examination report does not appear to be based on a review of all the pertinent medical evidence of record related to the claim.  Therefore, remand is required.  



When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).   

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  Undertake appropriate development to obtain any outstanding records pertaining to the Veteran's claim, to include any pertinent VA treatment records dated subsequent to March 2009.

2.  Then, the Veteran should be afforded a VA examination by a medical professional (either a dentist or physician) with sufficient expertise to determine the nature of any current residuals of the in-service jaw injury.  The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Specifically, the examiner is to review the January 1982 service treatment records, including X-ray reports, and the January 1990 VA examination report and the associated X-ray report.  Any indicated studies should be performed.  Based on the examination results and review of the record, the examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's current TMJ syndrome or any other abnormalities are etiologically related to the documented jaw injury during service.

The rationale for each opinion expressed must also be provided.  If the examiner is unable to provide any required opinion, he or she should explain why.

3.  The Veteran must be given adequate notice of the date and place of any requested examinations.  A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for an examination.  The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 

4.  The RO or the AMC should also undertake any other development it determines to be warranted. 

5.  Then, the RO or the AMC should readjudicate the issue remaining on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond.  The case should then be returned to the Board, if in order, for further appellate action. 

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).


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This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or 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).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs