Citation Nr: 1323052 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 05-00 120A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bruxism, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel REMAND The Veteran had active military service from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the current appeal, and specifically in May 2006, the Veteran testified at a videoconference hearing conducted before the undersigned Veterans Law Judge (VLJ). A transcript of the testimony has been associated with the Veteran's claims file. In light of the Veteran's claim that his bruxism was secondary to his posttraumatic stress disorder (PTSD), consideration of the bruxism claim was deferred in the February 2007, April 2008, January 2010 and March 2011 Board decisions pending additional development on the PTSD claim and subsequent readjudication by the RO. In a August 2012 remand, the Board remanded the Veteran's petition to reopen his claim for service connection for bruxism for additional procedural development, and specifically instructed the agency of original jurisdiction (AOJ) to (1) provide a corrective Veterans Claims Assistance Act of 2000 (VCAA) notice letter to the Veteran, to include a discussion of the information and evidence necessary to support a claim for secondary service connection; and (2) to secure the Veteran's Social Security Administration (SSA) records. In an April 2013 decision, the Board reopened the Veteran's claim of service connection for bruxism and remanded for further evidentiary development. First, the Board instructed the AOJ to obtain all the Veteran's treatment records from the VA medical center (VAMC) in Cleveland, Ohio, to include any outpatient facilities in Brecksville, Ohio, dated from 2000 to 2002 and from 2011 to the present. Second, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the nature and etiology of his bruxism. This examination was completed in May 2013, and copies of the examination report, updated VA treatment records, and earlier VA treatment records have been associated with the claims file and the Virtual VA claims system. Unfortunately, the medical opinion obtained on remand did not fully address the question before the Board. The Veteran is currently service connected for PTSD and contends that his bruxism arose as a result of the service-connected PTSD. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Pursuant to the April 2013 remand, the Veteran was afforded a VA dental examination in May 2013, at which time, the examiner reviewed the Veteran's claims file, evaluated the Veteran's dental condition, and performed several x-rays of his teeth. Based on his review of the diagnostic studies, the examiner noted signs of an "occlusal analysis" and added that the Veteran had a deep anterior overbite with no cuspid guided occlusion. The examiner also noted that there was "balancing contact between [teeth] 16/17" and a "[s]teep curve of Spee on left side." In addition, the examiner found significant wear facets on the lower anterior teeth and teeth numbers 4, 5, 6, 11 and 22. Based on his discussion with, and evaluation of the Veteran, the examiner determined that it was more likely than not that the Veteran was still "bruxing" and concluded that it was less likely than not that bruxism had its onset in service "as balancing contacts in lateral movements, [and] lack of cuspid guidance have been associated with grinding." The examiner noted that the Veteran could not recall when his bruxism started, and while his fellow comrades reported that he was grinding his teeth in service, "we do not know when in his tour of duty he started [t]o grind or if he entered service with this problem." With respect to whether the Veteran's PTSD caused his bruxism, the examiner explained that not all patients diagnosed with PTSD will grind and most grinders are not diagnosed with anxiety. The examiner thereafter concluded that there was less than a 50 percent probability that the Veteran's bruxism was caused by the service-connected PTSD when taking into consideration "the occlusion analysis." The examiner further noted that it was more likely than not that the service-connected PTSD aggravated the Veteran's "predisposition" to bruxism because it is reported in the literature that PTSD patients tended to grind more than the general population. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such examination is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds the May 2013 medical opinion to be incomplete for several reasons. First, the examiner did not provide an adequate explanation as to why the Veteran's bruxism was not incurred in service. Indeed, the examiner rendered his negative conclusion and relied on the diagnostic test findings, to include "balancing contacts in lateral movements, lack of cuspid guidance. . ." as the basis for his opinion. However, the examiner did not explain the relevance and/or significance of these medical findings when determining whether the Veteran's bruxism had its onset in service. Without a medical explanation addressing the significance of these findings and how these findings helped him arrive at his conclusion (that the Veteran's bruxism did not have its onset in service), the Board is left to rely on its own opinion, which the Board is precluded from doing. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may only consider independent medical evidence and may not substitute its own medical opinion.) Also, in issuing his opinion, the examiner noted that the Veteran could not recall when his bruxism started, and that it was not known whether he started to grind his teeth in service, or if he entered service with this problem. However, the record is not unclear as to whether the Veteran had bruxism when he entered service, as a review of the June 1963 enlistment examination is negative for any signs, notations, complaints or history of oral or dental problems, and there are no pre-service medical records that would indicate otherwise. The Veteran is therefore presumed to have been in sound condition at entry into service in August 1963. As such, the Board finds that this portion of the medical opinion was not predicated on a complete review of the claims file. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). With regard to whether the Veteran's bruxism was caused by his service-connected PTSD, the examiner appears to have relied on "the occlusion analysis" as the basis for his conclusion, and the Board is unclear as what the 'occlusion analysis' entails, and why this medical finding, principle or theory counters any possibility of a causal connection between the Veteran's PTSD and service. Indeed, the Board is left to question whether the occlusion analysis is indicative of a deep anterior overbite and no cuspid guided occlusion, as discussed by the examiner when he reviewed the Veteran's diagnostic test results, and if so, how these findings indicate that the Veteran's bruxism was not in fact caused by his PTSD. Once again, the examiner has referenced medical findings within the record in support of his opinion, but has not explained how these findings helped him arrive at his conclusion. As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. Also, while the examiner opined that it was more likely than not that the service-connected PTSD aggravated the Veteran's predisposition to bruxism, he did not discuss whether the bruxism itself was permanently worsened as a result of the PTSD. Indeed, the examiner appears to have only commented on whether PTSD has aggravated the Veteran's inclination or tendency to brux, rather than the nature of his bruxism itself, as instructed in the April 2013 remand. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. For the reasons described above, the Board finds that the Veteran's claim of service connection for bruxism must be remanded for a clarifying medical opinion. Accordingly, the case is REMANDED for the following action: 1. Refer the file to the examiner who conducted the May 2013 examination. The claims folder, a copy of this remand and any records on Virtual VA must be made available to, and reviewed by the examiner. The examiner should specifically take into consideration the service treatment records, to include the June 1963 enlistment examination report, which shows that the Veteran did not have a pre-existing dental or oral condition, to include bruxism prior to, and at the time of, his enlistment into service in August 1963. Following a review of the record, the examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any bruxism diagnosed anytime during the pendency of the appeal, had its onset in service or is otherwise related to the Veteran's military service. The examiner should specifically address the significance of the diagnostic test findings referenced in the May 2013 opinion, to include "balancing contacts in lateral movements, [and] lack of cuspid guidance" and explain how such findings, when applied to the facts of the case, help clarify whether the Veteran's bruxism did or did not have its onset in service. The examiner must provide a thorough and well-reasoned explanation for the opinion provided. The medical reasons for accepting or rejecting the statements of onset during service and continued symptoms since military service should also be set forth in detail. If the examiner finds that it is unlikely that bruxism had its onset in service or is otherwise related to the Veteran's military service, the examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that bruxism was caused by the Veteran's service-connected PTSD. The examiner should specifically discuss what an "occlusion analysis" entails and why this medical finding or principle is relevant in determining whether the Veteran's bruxism is or is not associated with his PTSD. If the examiner finds that bruxism was not caused by the Veteran's service-connected PTSD, then he should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that bruxism was aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected PTSD. In answering this question, the examiner should specifically focus on whether the Veteran's bruxism (and not his predisposition to bruxism) has been worsened by his PTSD. If the examiner finds that the Veteran's bruxism did not have its onset in service and was neither caused nor aggravated by his service-connected PTSD, then he must provide a complete rationale upon which his opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) If the examiner determines that he cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) (If the examiner who conducted the May 2013 examination is no longer available, the file should be referred to a clinician with sufficient expertise to address the questions set out above. If further examination of the Veteran is required, this should be scheduled.) 2. After completing the above, and any other development deemed necessary, readjudicate the issue of entitlement to service connection for bruxism. If the benefit sought on appeal is not granted, 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 before the case is returned to the Board. No action is required of the Veteran until he is notified by the originating agency; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).