Citation Nr: 1332634 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 13-07 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a dental condition for purposes of compensation and treatment. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1943 to February 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for a dental condition and a TDIU. In August 2013, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In August 2013, the Veteran submitted additional evidence in support of his claims, accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Historically, the Veteran sustained shell fragment wounds to the left side of his skull, right hand, and left leg from a high explosive during service in July 1944. He has been granted service connection for inter alia a traumatic brain injury (TBI) with speech apraxia and mild right hemiparesis and right upper extremity hemiparesis as a result of his injuries. He asserts that his dental problems are secondary to his combat wounds and further, that he cannot work due to his service-connected disabilities. Following a review of the record, the Board finds that remand is necessary for further development of the Veteran's dental and TDIU claims. Dental Condition With regard to the Veteran's claim for a dental condition (to include entitlement to outpatient dental treatment), eligibility for VA outpatient dental treatment is comprised of different classes. As is relevant here, dental treatment is warranted for those having a noncompensable service-connected dental condition that is the result of a combat wound or other service trauma (Class II(a)), and for any veteran whose service-connected disabilities are rated at 100 percent by schedular evaluation or who is receiving TDIU (Class IV). At a June 2010 VA dental examination, an examiner noted that the Veteran's face appeared to have less feeling on the right side beginning at the midline and moving posteriorly on his right side. The most pronounced area of paresthesias was the mandibular right side near the midline/mental foramen area. The examiner opined that it is less likely than not that the Veteran's acquired missing teeth were caused by his history of TBI, as evidenced by poor oral hygiene with subsequent non-restorable caries and hopeless periodontal disease. However, that examiner did not address the Veteran's specific contention, which is that his TBI residuals of right facial and jaw numbness cause him to be unaware of retained food in his teeth. In this regard, during July 2009 VA treatment, the Veteran reported that due to his service trauma he is unable to detect food in the right side of his mouth, and the occasional food retention has caused dental problems. Subsequent to the June 2010 VA examination, the Veteran submitted a medical opinion from Dr. Jimenez, a private oral/maxillofacial surgeon. In the January 2013 medical opinion, Dr. Jimenez stated that he had performed oral surgery/extractions secondary to bad infections/decay secondary to the Veteran's inability to maintain the area secondary to facial/jaw numbness from his service-related injuries. The Board notes that VA examination reports and medical records do not show that the Veteran has interference with toileting or grooming due to his service-connected TBI. Nevertheless, Dr. Jimenez's favorable medical opinion and the Veteran's contention, should be considered by the VA examiner. Therefore, a remand is necessary for an addendum opinion. TDIU An addendum opinion is also necessary with regard to the Veteran's TDIU claim. In an August 2011 VA examination report, a VA examiner addressed each of the Veteran's service-connected disabilities and discussed the employment restrictions and considerations that would be required. The examiner considered the impact of each disability on the Veteran's employability exclusive of the other service-connected disabilities and essentially indicated that the Veteran is not precluded from employment due to his service-connected disabilities. The examiner did not, however, provide an opinion as to whether the Veteran's service-connected disabilities, in the aggregate (i.e. the combined impact of his service-connected disabilities together), render him unemployable. An addendum opinion that addresses this question is therefore necessary. The Board further notes that in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer). Here, the VA examiner offered no discussion of the Veteran's educational background and previous work experience. On the Veteran's September 2010 Application for Increased Compensation based on Unemployability, he indicated that he only had a high school diploma, and had worked in maintenance from 1972 until his retirement in 1984. At the Veteran's August 2013 hearing, he testified that he was a mechanic. Thus, any addendum opinion must also reflect consideration of the Veteran's reported education level and prior work history. As the issue of entitlement to TDIU requires further development, the Veteran's dental claim cannot be adjudicated until this development is complete. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As is relevant here, dental treatment is warranted for any veteran who is receiving TDIU (Class IV). While on remand any pertinent, outstanding VA and private treatment records must be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran testified in August 2013 that he received private medical treatment from the Florida Neurology Clinic, private dental treatment from a private oral surgeon (Dr. Jimenez), and VA treatment at the Lakeland Outpatient Clinic (OPC). These records are to be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Contact the Veteran and ask that he identify any and all VA and/or non-VA outstanding records pertaining to his claims for TDIU and a dental condition that are not already of record, specifically to include medical records from the Lakeland VA OPC that are dated from August 2010, the Florida Neurology Clinic, and dental records from Dr. Jimenez. After obtaining the necessary authorization forms from the Veteran, the RO is to obtain such records and associate them with claims file. Any negative response must be in writing and associated with the claims file. 2. Once the record is complete, return the claim file to the examiner that provided the August 2011 VA examination report for an addendum opinion regarding the effect of the Veteran's service-connected disabilities on his employability. If that examiner is no longer available, schedule the Veteran for a VA social and industrial survey by a suitable replacement (e.g. a vocational rehabilitation specialist or a physiatrist), for an opinion as to the impact of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The examiner must review the claims file, and copy of the remand, and address the following: a) Is it at least as likely as not that the Veteran's service-connected disabilities, in the aggregate, and without consideration of his age or non-service-connected disabilities, render him unable to secure or maintain a substantially gainful occupation. b) If it is the examiner's opinion that the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with him service-connected disabilities, given his skill set and educational background. 3. Return the claims file to the examiner that provided the June 2010 VA dental examination report for an addendum opinion regarding the etiology of the Veteran's acquired missing teeth and his periodontal disease. If that examiner is no longer available, schedule the Veteran for a new examination by a suitable replacement. The entire claims file, and copy of the remand, must be made available to the examiner. a) The examiner is to specifically indicate whether the Veteran has "chronic" periodontal disease, as opposed to "acute" periodontal disease. If the Veteran has "chronic" periodontal disease, the examiner is to indicate whether it is at least as likely as not that such chronic disease is due to his combat wounds or other service trauma; or, are caused or aggravated by his service-connected TBI residuals, including facial and jaw numbness. b) Considering the Veteran's documented history and competent assertions, and the January 2013 private oral surgeon's medical opinion, the examiner is to indicate whether it is at least as likely as not that any of the Veteran's acquired missing teeth are due to his combat wounds or other service trauma; or, are caused or aggravated by his service-connected TBI residuals, including facial and jaw numbness. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. 4. All findings, along with a fully articulated medical rationale for all opinions expressed must be set forth in the examination reports. If the examiners feels that the requested opinion cannot be rendered without resorting to speculation, the examiners must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiners (i.e. additional facts are required, or the examiners do not have the needed knowledge or training). 5. Then, readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide them an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ D. JOHNSON Acting 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) (2013).