Citation Nr: 1503608 Decision Date: 01/26/15 Archive Date: 02/09/15 DOCKET NO. 05-40 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for temporomandibular joint (TMJ) dislocation with tooth injury. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected depression. REPRESENTATION Appellant represented by: Jeffrey Bunten, Attorney at Law ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to July 1983 and from December 1984 to December 1987. This appeal comes before the Board of Veterans' Appeals (Board) from July 2008 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board remanded the appealed claims in December 2012, and they now return to the Board for further review. The Veteran's motion to revise a prior Board decision on the basis of clear and unmistakable error is addressed in a separate document. The Veteran in November 2014 submitted a claim for service connection for bilateral plantar fasciitis, and a claim for service connection for erectile dysfunction secondary to depression. Neither of these claims has been addressed by the RO. Therefore, they are referred to the RO for appropriate action. The record before the Board consists of the physical claims files and electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). REMAND TMJ Dislocation with Tooth Injury The Veteran was afforded a VA examination in October 2008 VA addressing his TMJ disability. The examiner noted the Veteran's self-reported history of injury of his mouth from a rifle butt, but opined that the Veteran's TMJ disorder was not at least as likely as not related to trauma. Rather, the examiner opined that the TMJ disorder was most likely due to the Veteran's bruxism. An additional VA medical opinion was obtained in April 2009 based on review of the evidentiary record. That examiner opined that it was not at least as likely as not that the Veteran's bruxism was due to the trauma in service associated with a rifle butt striking the Veteran's mouth, or that it was otherwise causally related to service, noting that bruxism is generally related to stress, malocclusion, or missing teeth. In the course of appeal the Veteran attributed his claimed TMJ disorder to either a tooth extraction in service or being hit in the mouth with a rifle butt in service. The Board in December 2012 remanded for a medical examination addressing the Veteran's contention that he was struck by a rifle butt in service, and providing opinions whether it is at least as likely as not that the claimed TMJ dislocation with bruxism was causally related to service, or was caused or aggravated by the Veteran's service-connected depression. The requested examination was performed in August 2013, but the dental examiner only opined that the claimed TMJ disorder was not causally related to a tooth extraction in service. Thus, the requested opinions were not obtained, and it is thus necessary to remand for the required medical opinions. Additionally, the Veteran submitted an October 2013 private dentist's opinion letter endorsing a likelihood that his "TMJ issues" were causally related to one of the reported incidents in service (the tooth extraction or the rifle butt hit). Upon remand, the examiner should address this private opinion letter. Obstructive Sleep Apnea The Veteran has contended that his obstructive sleep apnea is due to his service-connected depression. Prior records, including a November 2009 sleep study, reflect the presence of obstructive sleep apnea. In an August 2013 supplemental statement of the case (SSOC), the Appeals Management Center (AMC) noted that a VA examiner in February 2013 found that the Veteran's obstructive sleep apnea was not at least as likely as not "caused by or chronically worsened by" his depression. Unfortunately, the report of the February 2013 VA examination is not of record. Therefore, development to obtain the report is in order. Additionally, the record reflects that the Veteran has been granted service connection for sinusitis and rhinitis. Because the record reflects that physiological upper airway structures are implicated in the diagnosed sleep apnea, examination is in order to address whether the Veteran's sleep apnea was caused or permanently worsened by the service-connected sinusitis and chronic rhinitis. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. This should include obtaining and associating with the record a copy of the report of the February 2013 VA examination addressing the Veteran's claimed sleep apnea. 2. Then, all pertinent evidence of record must be made available to and reviewed by the VA examiner who conducted the August 2013 VA examination addressing the Veteran's TMJ dislocation. The examiner should be requested to prepare an addendum providing opinions concerning the following: Whether it is at least as likely as not (50 percent or better probability) (a) that the Veteran's bruxism is etiologically related to the Veteran's active service, including whether it is etiologically related to the Veteran being hit in the mouth by a rifle butt in service or a tooth extraction in service; and, if not, (b) that the Veteran's bruxism was caused or permanently worsened by any of the Veteran's service-connected disabilities. Whether it is at least as likely as not that the Veteran's TMJ disability or dislocation is etiologically related to the Veteran's active service, including whether it is etiologically related to the Veteran being hit in the mouth by a rifle butt in service or a tooth extraction in service; and, if not, whether it is at least as likely as not that the Veteran's TMJ disability or dislocation was caused or permanently worsened by any of the Veteran's service-connected disabilities. When answering these questions, the examiner should address the private dentist's October 2013 opinion letter discussed above. The examiner must provide the supporting rational for all opinions expressed. If the examiner is unable to provide any required opinion, he should explain why the opinion cannot be provided. If an opinion cannot be provided without resorting to speculation, it must be so stated, and the examiner must provide the reasons why that opinion would require speculation. If the August 2013 VA dental examiner is not available, all pertinent evidence of record should be provided to and reviewed by another qualified health care professional who should be requested to provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 3. The Veteran also should be a VA examination by a physician with sufficient expertise to determine the etiology of the Veteran's sleep apnea. Any indicated tests and studies should be performed. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner should state an opinion as to whether it is at least as likely as not (50 percent or better probability) (a) that the disorder is etiologically related to the Veteran's active service; and, if not, (b) that the disorder was caused or permanently worsened by any of the Veteran's service-connected disabilities. The examiner should address in particular the likelihood that service-connected sinusitis with chronic rhinitis has caused or aggravated his obstructive sleep apnea. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to speculation, it must be so stated, and the examiner must provide the reasons why that opinion would require speculation. 4. The RO should also undertake any other development it determines to be warranted. 5. Then, the RO should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 2014). _________________________________________________ Shane A. Durkin 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) (2014).