Citation Nr: 1332877 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-36 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for temporomandibular joint (TMJ) dysfunction, currently assigned a 10 percent evaluation. 2. Entitlement to service connection for fibromyalgia, to include as secondary to the service-connected TMJ dysfunction. 3. Entitlement to service connection for a thoracolumbar spine disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a bilateral shoulder disability. 7. Entitlement to service connection for an acquired psychiatric disability, to include depression. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from June 1999 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of August 2006, which denied service connection for fibromyalgia, and April 2009, which denied the remainder of the claims on appeal. During the current appeal, and in September 2012, the Veteran appeared at a hearing held at the RO before the undersigned Veterans Law Judge. At the September 2012 hearing, the Veteran raised the issue of entitlement to service connection for headaches, which she claims are secondary to service-connected TMJ dysfunction. [In this regard, the Board notes that, in an unappealed November 2009 rating action, the RO denied service connection for headaches on a direct basis only.] In addition, the Veteran contended that she has speech problems, particularly with projection, due to her TMJ dysfunction. The issues of entitlement to service connection for headaches and for a speech disability, both asserted to be secondary to the service-connected TMJ dysfunction, have not been adjudicated. Therefore, the Board does not have jurisdiction over these issues, and they are referred to the agency of original jurisdiction (AOJ) for appropriate action. For the reasons set forth below, this appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Additional development is required prior to an appellate decision, to include examinations as directed below. Concerning the claim for an increased rating for the TMJ dysfunction, the Veteran's last VA examination was in March 2009. She states that she has episodes where her jaw will lock, and she submitted a private medical record showing that in April 2012 she was seen with her jaw which seemed to lock at about one inch. The Veteran should be afforded a current VA examination, to see if her TMJ condition has increased in severity. With respect to the service connection issues, the Veteran states that she was treated from 2001 through 2004 at Guthrie Army Health Clinic at Fort Drum, New York, and at Fort Eustis, Virginia, as a dependent of her husband, for conditions at issue. In addition, she states she received private treatment at Samaritan Medical Center in Watertown, New York, from 2001 through 2003. The RO must make all necessary efforts to obtain these records identified by the Veteran as relevant to her claim. It appears from the Veteran's testimony that she may also be receiving treatment at the Nashville VA Medical Center (VAMC); records submitted after her hearing show treatment from August 2012 to October, and any records of treatment after that should be obtained. In addition, although the Veteran was provided a VA examination in December 2008, that examination is insufficient. Service treatment records were not available at the time, and the examiner based his opinion solely on "speculation" that she had injured knees, shoulders, and back in 2000. The examiner also failed to comment on any evidence that was of record at the time, including the pre-discharge VA examination conducted in October 2001, which resulted in normal findings, or any of the post-service medical records, which include evidence of a left knee injury in November 2004. The Veteran was also provided a VA examination concerning fibromyalgia in April 2010; this resulted in a conclusion that fibromyalgia was first shown 5 years after service, and was not of service onset. However, the Veteran indicates that the records of her treatment from 2001 to 2004 will show continuous treatment from service of her multiple joint pain. Thus, she should be afforded an examination after those records are obtained. Finally, the Veteran claims service connection for a psychiatric disability which she states results from service, as well as from her painful conditions which she states are of service onset. She must be afforded a VA examination to address whether an acquired psychiatric disability had its onset during, or is related to, any in-service events. Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran and his attorney a Veterans Claims Assistance Act of 2000 notice letter pertaining to the issues of entitlement to service connection for a thoracolumbar spine disability; a right knee disability; a left shoulder disability; and fibromyalgia, as secondary to the service-connected TMJ dysfunction. 2. After obtaining any needed additional information from the Veteran, obtain the following: * All records of her treatment from 2001 through 2004 at Guthrie Army Health Clinic at Fort Drum, New York, and at Fort Eustis, Virginia, (McDonald Army Medical Center, to include satellite clinics); she states she received treatment at these military facilities as a dependent of her then-husband. * All records of her treatment from 2001 through 2003 at Samaritan Medical Center in Watertown, New York. 3. Obtain all records of the Veteran's treatment at the Nashville VAMC from October 2012 to the present. 4. Schedule the Veteran for an appropriate VA examination to determine the current manifestations and severity of her service-connected TMJ dysfunction. All pertinent signs and symptoms should be reported in detail, including inter-incisal range of motion and range of lateral excursion, expressed in millimeters (mm) of motion. The examiner should report whether there is any additional limitation of motion due to pain, repetitive motion, excess fatigability, incoordination, or flare-ups. The examiner should report the additional limitation of motion in millimeters. The examiner should address the evidence and contentions indicating that the Veteran's TMJ locks on occasion. All other symptoms of TMJ dysfunction should be described as well. The claims folder must be furnished to the examiner in conjunction with the examination. Any indicated tests must be accomplished, and the results reviewed, prior to the final opinion. The rationale for all opinions must be provided. 5. Schedule the Veteran for appropriate VA examination(s) to determine the following: * Whether she has fibromyalgia, and, if so, whether fibromyalgia at least as likely as not (50 percent or greater probability) had its onset during service, or was caused by any events which occurred during service, including a motor vehicle accident in April 2000. In addition, the examiner should address whether fibromyalgia was at least as likely as not caused or aggravated (permanently worsened) by service-connected TMJ dysfunction. * Whether she has a back disability, a left knee disability, a right knee disability, and/or a bilateral shoulder disability which at least as likely as not had their onset during service, or developed as a result of any events which occurred in service, including a motor vehicle accident in April 2000. For these opinions, the examiner must give due consideration to the service and post-service medical evidence, as well as the Veteran's contentions. To this end, the claims folder must be furnished to the examiner(s) in conjunction with the examination(s). Any indicated tests must be accomplished, and the results reviewed, prior to the final opinion. The rationale for all opinions must be provided. 6. Schedule the Veteran for a psychiatric examination, to determine whether she has an acquired psychiatric disability, to include depression, which had its onset during service, or results from any in-service events or conditions, including the Veteran's reported stressful job conditions during service. The examiner must review the claims file, and give due consideration to the service and post-service medical evidence, as well as the Veteran's contentions. To this end, the claims folder must be furnished to the examiner in conjunction with the examination. Any indicated tests must be accomplished, and the results reviewed, prior to the final opinion. The opinion should address whether it is at least as likely as not (a 50 percent or greater probability) that an acquired psychiatric disability: * had its onset during service; * was caused by any other events which occurred during service, or * was caused or aggravated (permanently worsened) by service-connected TMJ dysfunction. The rationale for all opinions must be provided. 7. After completion of the above and any additional development deemed necessary, adjudicate the claims on appeal (as are listed on the title page of this Remand). If any claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and afforded an opportunity to respond, before the claims file is returned to the Board for further appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of her claims. 38 C.F.R. § 3.655 (2013). She has the right to submit additional evidence and argument on the matters that 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 by the United States Court of Appeals for Veterans Claims (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). _________________________________________________ THERESA M. CATINO 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).