Citation Nr: 1318684 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-42 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for temporomandibular joint (TMJ) disability. 2. Entitlement to service connection for a psychiatric disability, to include anxiety and depression, to include as secondary to a TMJ disability or service-connected hypertension with headaches. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in July 2010. The Veteran requested a hearing before the Board in a May 2011 substantive appeal. However, the Veteran withdrew that request for a hearing before the Board in a November 2011 statement. The Board remanded the Veteran's claims for additional development in January 2012 and November 2012. The issue of entitlement to service connection for a psychiatric disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The Veteran does not have TMJ disability that is attributable to active service. CONCLUSION OF LAW The Veteran does not have TMJ disability that is the result of disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated April 2008, September 2009, January 2012, and March 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the March 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran claims that she has TMJ as a result of her active duty service. Specifically, she contends that she had tooth extractions during service which required that she keep her mouth opened for long periods of time which caused her to develop TMJ. The Veteran's service medical records show that a dental examination was normal at the Veteran's entrance to service in March 1974. Dental records show that the Veteran underwent a number of extractions in 1975. An entry dated in March 1977 shows that the Veteran was assaulted by her husband. Tenderness was noted about the mandible and jaw. X-rays of the face and mandible revealed no fracture. The Veteran's March 1977 separation examination did not reference any jaw or dental defects. Private treatment reports from T. Joiner, M.D., show that the Veteran was seen for a blood sugar check prior to surgery for TMJ syndrome in January 1996. In June 1998, the Veteran reported pain in the right TMJ joint. Private treatment reports from D. Boone, D.D.S, show that the Veteran was prescribed a night guard for TMJ in January 1996. In March 1997, the Veteran reported that her TMJ was worse at stressful times. VA outpatient treatment reports show that the Veteran was noted to have TMJ as part of her relevant medical history in May 1997. TMJ was also noted as a medical problem as of July 1997. In June 2004, the Veteran was noted to have a past medical history of TMJ, unchanged. An October 2007 statement from C. Ezelle, D.M.D., of Jackson Dental Care indicates that the Veteran was treated for TMJ from March 1996 to March 1997. At an October 2010 VA examination, the Veteran was noted to be missing teeth 1, 2, 3, 4, 14, 15, 16, 17, 18, 19, 30, 31, and 32. The Veteran indicated that she had some teeth extracted during service and she started having pain in the area where the teeth were missing soon after. She specifically stated that her symptoms did not start after her assault by her husband in service. She indicated that the assault occurred by her first husband and she was struck in the head and not the jaw. The Veteran reported no current treatment other than hot compresses when her jaw hurt. She noted that she had mouth guards made by a private provider ten years prior. The examiner assessed the Veteran with unspecified symptoms of the jaw. The examiner included an addendum opinion and stated that the claims file had been reviewed and that there was no evidence of temporomandibular dysfunction (TMD). The examiner stated that the records reveal only one reference to TMD as a differential by a private provider. The examiner stated that he found no physical evidence of TMJ surgery. At a hearing before a Decision Review Officer (DRO) in January 2011, the Veteran testified that she had jaw pain for years and was treated by an ear, nose, and throat doctor until her dentist finally diagnosed TMJ years after service. The Veteran indicated that she had symptoms of TMJ for thirty years. She testified that she had teeth extractions and dental work during service which she believes caused her TMJ. She stated that her TMJ pain increased her blood pressure. At a VA examination in January 2012, the examiner reviewed the claims file, diagnosed the Veteran with TMJ and indicated that the etiology of the disorder was unknown and that it would be speculative to say that the Veteran's symptoms were caused by extractions in the military or by trauma inflicted by her first husband. The examiner noted that the Veteran has seen private physicians and VA nurse practitioners for her TMD who had treated the symptoms palliatively with medication and an occasional guard which the Veteran did not wear. The examiner indicated that the Veteran did not exhibit any pain and had full range of motion. The Veteran indicated that she only sought treatment when she had flare-ups of pain, usually due to stress. At a VA examination in December 2012, the examiner reviewed the claims file and diagnosed the Veteran with TMJ syndrome. The examiner indicated that the first evidence of TMJ disorder was in 1996 with multiple visits for symptoms and treatment with pain medications, muscle relaxants, antidepressants, and an oral night guard. The examiner concluded that there was no evidence in the Veteran's claims file that she had TMJ syndrome during service. The examiner noted that nineteen years after service a diagnosis of TMJ disorder was confirmed. The examiner referenced head and a jaw trauma from an assault by the Veteran's ex-husband in March 1977. There was no finding of any type of jaw fracture or TMJ injury from the assault. The examiner also noted a history of extractions in service in 1975. The examiner stated that neither event had a diagnosis of TMJ disorder at the time of the incident or immediately following. The examiner noted that extracting teeth does not normally lead to TMJ disorders and he could not find that the trauma or extractions in service would lead to the development of a TMJ disorder nineteen years later. The examiner noted that the Veteran was seeing dentists and doctors since 1987 and the records do not include a diagnosis of TMJ until 1996. Since that time, the Veteran sought treatment and was treated with pain medication, muscle relaxants, and a night guard which has not been used for ten years. The examiner noted that he had seen the Veteran on several occasions and at those times the Veteran has always been symptom free with no limitation of jaw movements. He indicated that the Veteran had crepitus in both TMJs and some mild tenderness to palpation of some muscles of mastication, temporalis, and pterygoid muscles and he concluded that the Veteran had some episodes of symptomatic TMJ syndrome, as evidenced by private practice entries starting in 1996. The examiner concluded that the Veteran's current TMJ disorder was more related to her psychoaffective disorder and noted that the Veteran stated that her TMJ symptoms flared up when she was "stressed" and had decreased since she was placed on new medication (Fluoxetine). The examiner opined that it was less likely than not that the Veteran's current TMJ symptoms were due to or as a direct result of the Veteran's period of service to include her assault and in-service extractions. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for TMJ disability. The Board acknowledges that the Veteran is competent to report that she experienced jaw pain since service. Lay testimony is competent to establish the presence of observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Veteran's opinion that her TMJ disability is related to his active duty service is insufficient to provide the requisite etiology of the current TMJ disability because that matter requires medical expertise. A lay person is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, her statements regarding her TMJ disability being related to her active duty service are not competent as she is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. The only competent medical opinion of record regarding etiology, that of the December 2012 VA examiner, found that it was less likely than not that the Veteran's current TMJ symptoms were due to or a direct result of the Veteran's period of service to include her assault and in-service extractions. That opinion is more probative as to the etiology of the Veteran's TMJ disability as the examiner reviewed the entire claims file and provided a rationale to support the opinion based on that examiner's medical training and expertise. Consequently, the Board finds that service connection is not warranted because the preponderance of the medical evidence of record is against a finding that a TMJ disability is etiologically linked to the Veteran's active duty service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for TMJ disability and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for TMJ disability is denied. REMAND A review of the claims file reveals that a remand is again necessary before a decision on the merits of the remaining claim can be reached. The Veteran's claim was last remanded by the Board in order to afford the Veteran a VA examination to determine whether any psychiatric disability was caused or aggravated by either a TMJ disability or service-connected hypertension with headaches, to include medication taken for hypertension or headaches. Service connection for TMJ disability has not been established. Consequently, the issue of whether the Veteran's claimed psychiatric disability is caused or aggravated by TMJ is moot, because TMJ is not a service-connected disability. However, the issue of whether the claimed psychiatric disability is caused or aggravated by hypertension with headaches, to include medication taken for hypertension or headaches remains relevant and before the Board. At a December 2012 VA examination, the examiner diagnosed the Veteran with anxiety disorder. The examiner concluded that it was less likely than not that the Veteran's psychiatric diagnosis was negatively impacted by her TMJ or headaches. The examiner noted that the Veteran reported that her mood was not impacted by headaches. However, the examiner did not offer the requested opinion as to whether any psychiatric disability was caused or aggravated by hypertension with headaches including medications for hypertension and headaches. Therefore, as the December 2012 VA examiner did not provide the requested opinion, a remand is necessary. A remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been satisfied, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Associated with the claims file are VA outpatient treatment reports dated through February 2013. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain any VA records dated since February 2013 should be made. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA outpatient treatment reports dated since February 2013. If the Veteran identifies any other relevant medical records, those records should be obtained. Any negative responses should be associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination with a specialist with expertise treating psychiatric disabilities. The clinician should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible. The examiner must review the claims file and note that review in the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability, including anxiety, depression, and adjustment disorder was caused or aggravated by service-connected hypertension with headaches, including medication used to treatment hypertension and headaches. 3. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs