Citation Nr: 1512551 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 02-09 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tempomandibular joint (TMJ) dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries. 2. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as panic disorder without agoraphobia. 3. Entitlement to a rating greater than 30 percent for hypothyroidism, for the period prior to November 8, 2011. 4. Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from March 1987 to July 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from November 2001 and June 2003 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran presented testimony before a decision review officer at the RO in March 2005. A transcript of the hearing is of record. In March 2008 and July 2011, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The Board notes that during the pendency of this appeal, in a June 2014 rating decision, the RO granted an increased schedular rating of 100 percent for the service-connected hypothyroidism, from November 8, 2011. However, the issue of entitlement to TDIU prior to November 8, 2011 remains for consideration. The issues of entitlement to service connection for an acquired psychiatric condition, entitlement to a rating greater than 30 percent for hypothyroidism prior to November 8, 2011, and entitlement to TDIU are addressed in the remand portion of the decision, and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. Clear and unmistakable evidence that the Veteran's TMJ was not aggravated beyond the natural progression during service has not been presented. 2. The Veteran's current TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries is related to the aggravation of this condition during active service. CONCLUSION OF LAW The Veteran's TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries is related to her period of active service. 38 U.S.C.A. §§ 1110, 1153. 5107 (West 2014); 38 C.F.R. § 3.306 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable decision to reopen the Veteran's left shoulder service connection claim, any deficiency as to VA's duties to notify and assist, as to that aspect of the claim, is rendered moot. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. See 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). The law further provides that, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). The Veteran asserts that her preexisting TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries was permanently aggravated by her military service and surgeries therein. Following service the Veteran has been currently assessed with TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries. The Veteran and VA do not dispute that the Veteran was diagnosed with TMJ and had several surgeries prior to her entry into service, and thus, this condition preexisted service. Additionally, service treatment records (STRs) show that the Veteran was treated for complaints related to her TMJ condition and underwent multiple surgeries during service for this condition; thus, there is evidence of an increase in severity during service. As the presumption of aggravation has arisen in this case due to an increase in a disability in service, the evidence must show a lack of aggravation by establishing by clear and unmistakable evidence that the increase in the Veteran's TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries was due to the natural progress of the disease. A review of the medical evidence does not allow the Board to find by clear and unmistakable evidence that the increase in the Veteran's TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries was due to the natural progress of the disease, and appears to be related, at least in part, to the surgeries performed during service. In this regard, the Board finds that the November 2011 opinion that finds that the surgeries in service were the result of the natural progression of the pre-service treatment, is not adequate as it does not provide a sufficient explanation as to why the surgeries in service were not also contributing factors to the increased severity of the disability as opposed to part of the natural progression, particularly in light of the March 2011 opinion. On the other hand, the March 2011 opinion indicates that the in service surgery resulted in fragmentation of the implanted prosthesis that were put in to replace the pre-service prosthesis, and based on the complicated nature of the Veteran's condition and treatment in and prior to service, that it was difficult to predict the natural progress of the TMJ in the Veteran's case because it involved "a complex combination of chronic inflammation, osteoarthritis, articular problems, myalgias, viral infection, and connective tissue breakdown." Given the evidence, the Board finds that there is not clear and unmistakable evidence that the Veteran's TMJ dysfunction and malocclusion was not permanently aggravated during active service and treatment therein. The Board observes that a Veteran's "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The Board would further observe that the fact that the Veteran's PULHES profile was reduced to 4 and she was separated from service based on physical disability due primarily to her TMJ dysfunction, which tends to support a finding that her condition was permanently aggravated. Based on the foregoing, the evidence does not clearly and unmistakably demonstrate that any increase in the severity of the preexisting TMJ dysfunction and malocclusion was due to the natural progress of the condition. As such, the in service incurrence element of service connection for TMJ dysfunction and malocclusion on the basis of aggravation is present. Gilbert (Daniel R.) v. Shinseki, 26 Vet.App. 48 (2012) (per curiam) (The presumption of soundness relates to the "in-service incurrence or aggravation" element necessary to establish service connection as distinct from the "nexus" element). The examinations, medical statements, and treatment records confirm that the Veteran has current TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries. Accordingly, she has satisfied the requirement of a current disability. With regard to nexus, the only relevant medical evidence addressing this question is the March 2011 VHA opinion submitted by Dr. B. In his statement, Dr. B. indicates that the Veteran's condition is chronic and that her long term prognosis is questionable. Moreover, treatment records show continuous treatment for her TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries since service. Given Dr. B's statements and the medical and lay evidence of record, the Board finds that evidence of a relationship between the Veteran's current TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries and her treatment and aggravation during active service to be established. Based on the foregoing, the Board finds that the criteria for entitlement to service connection for TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries have been satisfied, and service connection for a TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries is granted. ORDER Service connection for TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries is granted. REMAND Acquired Psychiatric Disorder In a July 2011 remand, the Board found that a new VA examination was necessary in order to obtain a proper opinion on (1) the etiology of the Veteran's other diagnosed psychiatric disabilities (besides panic disorder) and their relationship to service and the service-connected hypothyroidism; (2) the significance, if any, of the Veteran's in-service treatment at the behavioral health unit; and (3) the significance, if any, of the Veteran's subjective complaints of depression prior to and since service. Specifically, the Board directed that the Veteran be given a VA examination and that the examiner do the following: (1) Give an opinion as to when any currently diagnosed psychiatric disorder was first manifested (i.e., prior to service, in service, or after discharge from service). If the Veteran's psychiatric disorder(s) clearly and unmistakably existed prior to service, the examiner was asked to indicate whether there was a permanent increase in the severity of the underlying pathology associated with the Veteran's psychiatric disorder(s) which occurred during service. If the examiner answered this question affirmatively, the examiner was asked to indicate whether the increase in severity was clearly and unmistakably due to the natural progress of the disease. (2) If the examiner determined that the Veteran's psychiatric disorder(s) did not clearly and unmistakably exist prior to service, the examiner was asked to give an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the Veteran's psychiatric disorder(s) began in or were related to service. (3) In the alternative, the examiner was asked to indicate whether it is at least as likely as not (i.e., 50 percent or greater possibility) that the Veteran's psychiatric disorder(s) were caused by, the result of, or due to her service-connected hypothyroid disability. If the examiner answered this question negatively, the examiner was asked to express an opinion as to whether the Veteran's psychiatric disorder(s) were aggravated by (i.e., permanently worsened) beyond its natural progression by her service-connected hypothyroid disability. The Veteran was afforded another VA examination in November 2011. The examiner diagnosed the Veteran with panic disorder without agoraphobia, in remission. In rendering this diagnosis, the examiner noted that the Veteran had reported only one episode of a severe panic attack following TMJ surgery in the early 1990s, which she attributed to a medication prescribed for post-operative pain. Other milder panic-like episodes, characterized by shortness of breath, heart palpitations, and feelings of apprehension, occurred after the surgery, with periods of remission, sometimes lasting several years. The Veteran also reported that at the time of her examination, mild panic-like symptoms occurred less than once a month and she was able to talk herself through such "spells" and had not had to use her medication in several years. The examiner also noted that the Veteran was not participating in psychotherapy or psychiatric follow-up at that time. The examiner noted that the Veteran endorsed a few mild, intermittent anxiety and depressive symptoms at that time, which were described as brief, situational reactions to events at home or at work and as such, the examiner concluded that they did not warrant an Axis I disorder diagnosis at that time. With regard to the requested opinion on the onset of any currently diagnosed psychiatric disorder(s), the examiner noted that the Veteran did not have a current active Axis I diagnosis. Initially, the Board notes that the Veteran has been diagnosed with panic disorder during the course of her appeal. The November 2011 examiner does not refute these prior diagnoses of panic disorder, merely indicates that at the time of the examination, this condition was in remission. Thus, to the extent that the examiner states that her panic disorder is not related to service because of the absence of a current Axis I diagnosis, the opinion is inadequate. See McClain v. Nicholson, 21 Vet.App. 319, 321 (2007) (explaining that the current disability requirement may be satisfied by a disability that develops during the pendency of the claim). The examiner also stated that the evidence from the claims file showed that the Veteran began struggling with depressive symptoms at age 16, and that she had some degree of depression off and on since her teenage years; however, the claims file contained no evidence of a diagnosis or treatment for depression or anxiety during her military service. The examiner noted that the Veteran denied struggling with symptoms of anxiety or depression prior to her discharge in 1990, and the medical evidence showed that she was first seen for mental health treatment between 1992 and 1994, two years after her discharge, for recent onset of panic attacks. Therefore, the examiner opined that it is less likely than not that the Veteran's mental health symptoms of anxiety (i.e., panic attacks) or depression began in or are related to her period of active military service. The Board finds that this portion of the examiner's opinion does not adequately respond to the Board's July 2011 remand directives. In this regard, although the examiner noted that the evidence showed that the Veteran reported having mental health issues prior to service, and that there was no evidence of mental health problems during service or at the time of her discharge, the examiner failed to give a definitive opinion as to whether the Veteran's then currently diagnosed panic disorder began prior to, during, or after her military service. This omission then made it impossible for the examiner to offer an opinion as to whether any pre-existing panic disorder was aggravated during service, and whether any such aggravation was due to the natural progress of the disease. Additionally, given that the Veteran is now service-connected for TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries, an opinion as to whether the Veteran has a psychiatric condition related to the TMJ disability is warranted. Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2014). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet.App. 109, 114 (1996); Stanton v. Brown, 5 Vet.App. 563, 569 (1993). As such, the Board finds that a remand for a new examination and medical opinion addressing the etiology of any currently diagnosed acquired psychiatric disorder is necessary. 38 U.S.C.A. § 5103A (d) (West 2014). Hypothyroidism Prior to November 8, 2011 In the July 2011 remand, the Board remanded the Veteran's claim of entitlement to evaluation in excess of 30 percent for hypothyroidism because it was inextricably intertwined with the claim for service connection for a psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). In this regard, the Board noted that the Veteran's hypothyroidism is evaluated under 38 C.F.R. § 4.119, Diagnostic Code 7903, and is currently rated as 30 percent disabling. An evaluation in excess of 30 percent requires, among other things, evidence of mental disturbance (i.e., dementia, slowing of thought, depression). The Board then remanded for a VA examination to determine which of the Veteran's psychiatric symptoms are related to the service-connected hypothyroidism, if any, and which psychiatric symptoms are separate and distinct from it. With regard to the relationship, if any, between the Veteran's diagnosed panic disorder without agoraphobia and her service-connected hypothyroidism, the November 2011 examiner noted that evidence from the claims file showed that panic attacks may have been attributable to multiple possible factors, including TMJ surgery, mononucleosis, Epstein-Barr virus, and excessive doses of synthyroid. The examiner then noted that such medical conditions fall outside of his scope of practice, and therefore, he was unable to give an opinion as to whether the Veteran's panic disorder, was caused by or the result of her service-connected hypothyroidism. Accordingly, the Board finds that as the examiner was not able to render the requested opinion, this portion of the examination is lacking sufficient detail, and is therefore, inadequate for evaluation purposes. As such, the Board finds that a remand for a new examination and medical opinion addressing the etiology or relationship between any currently diagnosed acquired psychiatric disorder and/or psychiatric symptoms and the Veteran's service-connected hypothyroidism is necessary. 38 U.S.C.A. § 5103A (d) (West 2014). TDIU Prior to November 8, 2011 As noted above, during the pendency of this appeal, in a June 2014 rating decision, the RO granted an increased schedular rating of 100 percent for the service-connected hypothyroidism, from November 8, 2011. The remaining question, therefore, is whether she is entitled to TDIU prior to November 8, 2011. Given that the Board has awarded service connection for TMJ dysfunction and malocclusion with associated temporal and frontal headaches, status-post TMJ surgeries, the assignment of a rating for this disability may have a bearing on the issue of entitlement to TDIU, and thus, any Board action on the TDIU matter would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, the Board will defer action on this issue. The appellant is hereby notified that it is the appellant's responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of his failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2014). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she identify any and all non-VA sources of treatment for her acquired psychiatric disorder, and service-connected hypothyroidism that are not already of record. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent private records, which are not already of record. If records identified by the Veteran are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2014). 2. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran from November 2011. If there are no VA medical records dated after November 2011, this finding should be documented in the claims folder. 3. Schedule the Veteran for an examination by an examiner who has not previously examined her, in order to ascertain the nature and etiology of the Veteran's currently diagnosed psychiatric disabilities. The examiner should review the claims folder and a copy of the REMAND and note such review in the examination report or in an addendum. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner is asked to ascertain the nature of all psychiatric disabilities and proper diagnoses thereof, including but not limited to panic disorder without agoraphobia, panic attacks, anxiety, anxiety disorder, and chronic adjustment disorder with depressed mood, as set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). In particular, the examiner is asked to express an opinion as to when the Veteran's currently diagnosed psychiatric disorder(s) were first manifested (i.e., prior to service, in service, or after discharge from service). If the Veteran's psychiatric disorder(s) clearly and unmistakably (i.e., undebatably) existed prior to service, the examiner is asked to indicate whether is there a permanent increase in the severity of the underlying pathology associated with the Veteran's psychiatric disorder(s) which occurred during service. If the examiner answers this question affirmatively, the examiner is asked to indicate whether the increase in severity is clearly and unmistakably (i.e., undebatably) due to the natural progress of the disease. If the examiner determines that the Veteran's psychiatric disorder(s) did not clearly and unmistakably (i.e., undebatably) exist prior to service, the examiner is asked whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's psychiatric disorder(s) began in or are related to her period of active service. The examiner should consider the Veteran's reports of continuity of psychiatric symptoms since discharge from service in reaching this conclusion. In the alternative, the examiner is asked to indicate whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's psychiatric disorder(s) were caused by, the result of, or due to her service-connected hypothyroid disability and/or her service connection TMJ disability. If the examiner answers this question negatively, the examiner is asked to express an opinion as to whether the Veteran's psychiatric disorder(s) were aggravated by (i.e., permanently worsened) beyond its natural progression by her service-connected hypothyroid disability or TMJ disability. The examiner should provide a complete rationale for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is competent to report symptoms and injuries, as well as diagnoses provided to her by physicians. If the Veteran's reported history is discounted, the examiner should provide a reason for doing so. A Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. 4. Thereafter, the RO or AMC should readjudicate the Veteran's claims for service connection and entitlement to a TDIU, based on the new evidence of record. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise 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 2014). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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). Department of Veterans Affairs