Citation Nr: 1336109 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-37 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypotension. 2. Entitlement to service connection for a jaw disorder, to include temporomandibular joint (TMJ) disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2000 to June 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In January 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The issues were previously remanded by the Board in March 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran has claimed entitlement to service connection for hypotension and a jaw disorder, both of which she contends originated during service. For the reasons discussed below, the Board finds that an additional remand is required for further development of both of these claims. Initially, the Board notes that the Veteran submitted additional private treatment records as requested in the March 2011 Board remand in May and June 2012. The RO last issued a Supplemental Statement of the Case (SSOC) in April 2012. There is no waiver of agency of original jurisdiction (AOJ) consideration of this evidence in the first instance. As this case is being remanded, the AOJ must consider the additional evidence received when it readjudicates the claim. 38 C.F.R. § 20.1304(c). In the March 2011 remand, the Board found that the January 2006 VA examination reports of record are inadequate for purposes of evaluating the Veteran's claims. The Board remanded the claims so that additional VA examinations and opinions could be obtained. In March 2011, the Veteran underwent hypotension and dental VA examinations. However, the Board finds the additional VA opinions are likewise inadequate for rating purposes as they did not fully discuss the specifics noted in the previous remand. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order). First, with respect to the hypotension claim, the March 2011 Board remand requested a new VA examination and noted the examiner should thoroughly discuss the Veteran's service treatment records, including the multiple in-service low blood pressure readings. The Board noted that the examiner should also discuss the relationship, if any, between the Veteran's anemia or her pregnancies and miscarriages and her low blood pressure as the January 2006 VA examiner opined that the Veteran's low blood pressure could have been due to her pregnancy and miscarriages. The March 2011 VA examiner stated it would only be with mere speculation as to whether the Veteran's claimed hypotension was incurred or aggravated as a result of military service. Without doubt, the Veteran was hospitalized and during the course of treatment had systolic and diastolic hypotensive pressures. Etiology related to the hypotension is very vague and unclear as her medical history is relatively benign. The Veteran is positive for anemia; however, her laboratory results would not account for chronic hypotension. From a medical standpoint, the examiner stated she could not imagine any military skill set which would bring about hypotension or result in aggravation of underlying disease process. Though the March 2011 VA examiner referenced the Veteran's in-service findings, the examiner did not discuss the Veteran's pregnancies and miscarriages or give an opinion as to etiology. It is also unclear if the VA examiner understand that the onset of a chronic disability in service would be sufficient to warrant service connection, rather than a finding that such disability was related to some injury or activity therein. As such, the Board finds an additional VA examination and opinion is necessary to determine the etiology of the Veteran's claimed hypotension. Next, the Board finds that a new VA dental opinion is necessary due to inadequacies in the January 2006 and March 2011 VA examination reports. First, the Board observes that the January 2006 VA examiner only found one reference to TMJ in the Veteran's service treatment records. The examination report mentions a July 2002 service dental record referring the Veteran to the temporomandibular disorder clinic. However, an August 2002 service dental record notes that the Veteran experiences pain in her jaw when it is open for even 15 minutes. She was also noted to have clicking in the joints. A September 2003 service dental record notes TMJ with clicking, popping, and restricted opening of her mouth. This last record also makes reference to a TMJ evaluation. The March 2011 VA examiner gave no discussion of the Veteran's dental history. The Board finds that the lack of discussion of these potentially significant service dental records renders the resulting diagnosis and etiology opinions inadequate. Furthermore, the Board notes the Veteran's contention that her jaw symptoms began following surgery to remove her wisdom teeth in service. The January 2006 VA examination report diagnosed significant class II malocclusion, which is a congenital condition. It also diagnosed articular disk disorder of the reducing type. The March 2011 VA examiner stated that the Veteran's disability was at least as likely as not due to her Class II malocclusion which is a congenital defect. The Board notes that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2010); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection for a congenital disability, however, may be awarded if it is shown that such congenital defect was aggravated through superimposed disease or injury during active service. See VAOPGCPREC 82-90 (July 18, 1990). In the case at hand, the Veteran has asserted that she her jaw symptoms did not manifest until after her in-service oral surgery. The January 2006 VA examination report does not address the question of a superimposed disease or injury. Though the March 2011 VA examiner stated the Veteran's disability was not caused or aggravated by service, the dentist gave no rationale to support that opinion. On remand, the question of aggravation by a superimposed injury with full supporting rationale must be included in any subsequent VA examination. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current hypotension. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should diagnose any pertinent pathology, and should expressly diagnose or rule out a diagnosis of chronic hypotension. As to any such disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such disability had its onset in service, or is otherwise etiologically related to the Veteran's military service. The examiner should thoroughly discuss the Veteran's service treatment records, including the multiple in-service low blood pressure readings. The examiner should also discuss the relationship, if any, between the Veteran's anemia or her in-service pregnancy and miscarriages and her low blood pressure. Any opinion expressed must be accompanied by a complete rationale. 2. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current jaw condition. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current disabilities. The examiner should expressly diagnose or rule out a diagnosis of TMJ disorder. As to any pertinent disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that any such disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service. In giving this opinion, the examiner should discuss the Veteran's service treatment records, including the suggestions of TMJ disorder in July 2002, August 2002, and September 2003. If the examiner finds significant class II malocclusion or another congenital defect, as was found in the January 2006 and March 2011 VA examination reports, the examiner should opine as to whether it is at least as likely as not that any such condition was subject to a superimposed injury or disease during the Veteran's military service, or otherwise aggravated by service, to include by the removal of her wisdom teeth during service. Any opinion expressed must be accompanied by a complete rationale. 3. After the development requested above has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ MICHAEL LANE 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).