Citation Nr: 1316894 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-42 226A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for bruxism, to include as secondary to service-connected anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The appeal of the Veteran originally included a claim for service connection for an acquired psychiatric disorder. In a rating decision in September 2011, the RO granted the claim by granting service connection for anxiety disorder, effective fromo November 2008. The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. 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 The Veteran has been diagnosed with bruxism and contends that it is a result of his anxiety disorder, which is service connected. The rating decision dated in February 2009 indicates that the RO considered outpatient treatment records from VAMC West Palm Beach, Florida, from October 16, 1996 through "September 21, 2199" (sic). Those records have not been associated with the file before the Board. As these records are VAMC records, these VA records are constructively of record and may be pertinent to the claim. Thus, they must be secured and associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran has also submitted a one page report from his private dentist, Dr. J. M. Shuster, received by VA in July 2009. In the report, Dr. Shuster noted that the Veteran had been his patient for the past 10 years. Dr. Shuster's records also have not been associated with the file. In addition, the Veteran has stated that he first learned he had bruxism from a dentist in Colorado Springs, Colorado in 1976, but no attempt has been made to obtain those records. The Board has determined that the records of the private dentists are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). At this point, as the Veteran has related the cause of his dental disability to his service-connected anxiety disorder. In addition, the Veteran has provided evidence that the onset of his anxiety disorder in service resulted in physical symptoms that manifested in service such as an eye tic. Therefore, there is an issue of direct service connection, i.e., whether the bruxism started in service that is part of the Veteran's claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). The Board has therefore determined that VA should provide the Veteran with a VA examination as there is indication that the Veteran has a current disability, bruxism, claimed as related to service, or proximately due to or chronically aggravated by, a service-connected disability, but insufficient competent medical evidence to make a decision on the claim. The examination should consider all of the evidence, including the Veteran's lay evidence, and determine what are the Veteran's current dental conditions and whether any of them had their onset in service or are related to service, or are proximately due to or chronically aggravated by, the Veteran's service-connected anxiety disorder. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records from the West Palm Beach, Florida VAMC and associated outpatient clinics, dated from October 1996 to the present. All efforts to obtain these files must be documented in the file. If no records are obtained the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran that he may submit any such records in his possession. 2. Ask the Veteran to either submit or authorize VA to obtain the records of all private medical providers who have treated the Veteran for any dental condition at any time since separation from service, to specifically include the records of Dr. J. M. Shuster and the private dentist in Colorado Springs, Colorado, who treated the Veteran in 1976. The RO/AMC should attempt to obtain these records once authorization is obtained. All efforts to obtain these records must be documented in the file. The RO/AMC should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran that he may submit any such records in his possession. 3. Thereafter, provide the Veteran with a VA examination for a dental disorder. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. The examiner is asked to identify all current dental disabilities, including bruxism and any additional dental disabilities caused by or aggravated by the bruxism disability, and then, for any diagnosed disability, is requested to offer an opinion as to whether it is at least as likely as not (probability of 50 percent or more), that the Veteran's dental disability is related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. If, and only if, a dental disability is determined not to be directly related to service, the examiner is also asked to opine as to whether it is at least as likely as not that the Veteran's service-connected anxiety disorder caused or chronically aggravated a dental disability. The examiner is advised that in this context, the term "aggravation" means a permanent increase in the disability, that is, an irreversible worsening beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms, due to service-connected disabilities. The examiner is asked to reconcile his/her opinion with the findings from the June 2011 VA examination, and, if feasible, to offer an opinion as to the etiology for each of the missing teeth, endontically treated teeth, dentally restored teeth, crowns, and implants. The Board is interested in learning which, if any, of the findings are related to or due to bruxism. If the examiner determines that a dental disability is related to service or a service-connected disability, the examiner is also asked to address the functional impact of the disability. The examiner is advised that lay evidence of continuity of symptoms after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that the symptom, for example pain, is derived from an injury, disease, or event in service. If, however, after a review of the record, an opinion on causation is not possible without resort to speculation, the VA examiner is asked to clarify why, and to identify any additional development of the evidence that would facilitate rendering such an opinion. 4. After the development requested above is completed to the extent possible, adjudicate the claim for service connection for bruxism, to include as secondary to service-connected anxiety disorder. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board The appellant 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 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). _________________________________________________ U. R. POWELL 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).