Citation Nr: 1326357 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-40 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for temporomandibular joint dysfunction syndrome (TMJ). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from June 2003 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for TMJ. The Veteran requested a Board hearing on his substantive appeal, and was scheduled for a hearing in May 2012. The Veteran failed to report to the hearing. The Veteran additionally appealed the issue of entitlement to service connection for a lumbar spine disability. In February 2013, the Appeals Management Center (AMC) granted entitlement to service connection for lumbar strain. As such, this claim is no longer before the Board. This appeal was previously before the Board in September 2012. The Board reopened the claim and remanded so for an addendum VA medical opinion. The case has been returned to the Board for further appellate consideration. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in regards to the Veteran's increased rating claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012), are met. The Veteran has advanced two theories of entitlement: (1) he developed TMJ during service; and (2) his symptoms were brought on and aggravated by his service-connected PTSD. He states that he grinds his teeth at night, and he believes that this is due to his service-related nightmares. A review of the Veteran's service treatment records reveals that he did not complain of jaw symptoms during his entrance examination, and evaluation of his mouth was noted to be normal. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that (1) the disability existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. See 38 U.S.C.A. § 1111 ; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. As a general proposition, congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes, and therefore usually cannot be service connected. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (though not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c) , 3.306. Also, according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. On his September 2006 medical board, the Veteran indicated that he suffered jaw pain during active service, but that he had not sought treatment for his pain prior to the medical board report. Then in November 2006, the Veteran received dental treatment and complained of jaw pain in the right TMJ. He had popping and grinding with opening his jaw. The dentist noted the Veteran was a "grinder" and prescribed a night mouth guard. The dentist also instructed the Veteran to seek treatment from an oral surgeon if his TMJ pain did not go away in two to three months. In February 2007, the Veteran underwent a VA dental examination. At that time, although he complained of occasional clicking of his jaw, he did not have clicking or popping on objective examination. The examiner found that the Veteran's symptoms were more likely related to his occlusion, rather than "true" TMJ. The examiner explained that the Veteran "does not exhibit classical symptoms of tempormandibular joint dysfunction syndrome. He does not experience chronic pain. His symptoms are relatively minor." In September 2012, the Board remanded the claim for an addendum opinion regarding whether the Veteran's TMJ was due to or aggravated by his service-connected PTSD. In January 2013, an examiner noted that there was no evidence of TMJ during the 2007 examination, and that the Veteran's symptoms were attributed to his occlusion. The addendum opinion noted that occlusions are developmental, and therefore not related to service. VA treatment records from 2008 include complaints of TMJ pain and grinding of the teeth. In February 2008 the VA treatment provider noted clicking of the jaw with movement. As the 2007 examiner noted that the Veteran did not have TMJ, due in part to his lack of a complaint of pain, and he subsequently complained of pain, the Board finds that a new examination is necessary. Additionally, if the Veteran's jaw pain, grinding and clicking is attributable to a developmental occlusion, then the Board's request for an opinion on aggravation is still applicable and has not been addressed. On remand, the Veteran should be afforded another VA dental examination, which addresses direct and secondary theories of entitlement. Additionally, medical clarification is necessary as to whether the Veteran's problems with occlusion are manifestations of a congenital or developmental "disease" or in the alternative a congenital or developmental "defect." Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If manifestations of a congenital disease, an opinion may be required as to whether it was as likely as not aggravated by the Veteran's period of active service beyond its natural progression. If instead the symptoms are manifestations of a congenital defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Further, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim.) Accordingly, the case is REMANDED for the following action: 1. Ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. In particular, the veteran should be informed of how to establish his claim of secondary service connection under 38 C.F.R. § 3.310. 2. Ongoing VA treatment records should be obtained and associated with the claims file or electronically. 3. Schedule the Veteran for an appropriate examination for his claimed TMJ. The claims file and access to Virtual VA should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting all appropriate diagnostic and physical testing, and obtaining a complete history from the Veteran, the examiner should document any current jaw symptoms. The examiner should: a) Indicate whether TMJ is currently shown, or has been shown at any time since December 2008. b) If the Veteran is diagnosed with TMJ at any time since December 2008, the examiner should provide: (i) an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the TMJ was incurred in service; and (ii) an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's PTSD caused or aggravated his TMJ. c) If the Veteran's symptoms are not attributed to TMJ, then the examiner should provide an opinion as to whether his reported symptoms are indicative of a congenital defect, or in the alternative a congenital disease. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. d) For each congenital or developmental defect identified, the examiner should indicate whether it was subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability. Please identify the additional disability. e) In contrast, for each congenital or hereditary disease identified, the examiner should state whether the disease clearly and unmistakably preexisted the Veteran's entry into active service. If so, the examiner should indicate whether there was there a permanent increase in the severity of the condition beyond its natural progression as a result of service. The examiner must provide a detail explanation for any opinion proffered. If the examiner is unable to provide any opinion requested, the examiner must fully explain why such opinion could not be obtained. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ DAVID L. WIGHT 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).