Citation Nr: 1540604 Decision Date: 09/21/15 Archive Date: 10/02/15 DOCKET NO. 11-33 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence was received to reopen a claim for service connection for residuals of a traumatic mouth injury, to include loss of teeth, for VA compensation purposes. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to service connection for residuals of a right hip fracture affecting the positioning of the right leg. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from January 1964 through September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran requested initially in his substantive appeal that a Board hearing be scheduled in this matter. That request, however, was withdrawn by the Veteran in a December 2011 written submission. Neither the Veteran nor his representative has made a renewed hearing request. The Board remanded this matter previously in April 2014 for further development of the issues on appeal. Such development was to include: obtaining records for treatment received by the Veteran at the VA Medical Center (VAMC) in Oklahoma City, Oklahoma from July 1998 through April 2000 and from April 2011 through the present; associating with the claims file the VA temporary file generated in connection with the Veteran's request for vocational rehabilitation; and readjudication of the issues on appeal by the agency of original jurisdiction (AOJ). Although the ordered development has been performed, still additional development is necessary in this case. The issues of the Veteran's entitlement to service connection for residuals of a traumatic mouth injury, to include loss of teeth, for VA compensation purposes; service connection for a low back disorder; service connection for a right shoulder disorder; and service connection for residuals of a right hip fracture affecting the positioning of the right leg are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A March 2009 rating decision denied the Veteran's initial claim for service connection for residuals of a mouth injury, to include loss of teeth; and the Veteran also did not subsequently appeal that denial. 2. The Veteran's current petition to reopen his claim for service connection for a mouth injury, to include loss of teeth, was received in October 2010. 3. The evidence associated with the claims file since the RO's March 2009 rating decision, when considered with the evidence previously of record, relates to the previously unestablished question of whether the Veteran has a dental condition that can be neither repaired or replaced, and moreover, raises a reasonable possibility of substantiating the Veteran's claim for service connection for residuals of a traumatic mouth injury, to include loss of teeth. CONCLUSION OF LAW The additional evidence associated with the claims file since the RO's final March 2009 denial is new and material, and the Veteran's claim for service connection for residuals of a mouth injury, to include loss of teeth, is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's initial claim for service connection for a mouth injury, to include loss of teeth, was received in October 2008. The Veteran's mouth injury claim was denied in a March 2009 rating decision on the basis that the evidence available at that time did not show that his in-service mouth and dental injuries resulted in dental damage or loss of teeth that could neither be repaired nor replaced. The Veteran did appeal; hence, the decision is final. 38 U.S.C.A. § 7105(c). Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a) , "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence available at the time of the final March 2009 denial included: the Veteran's service treatment records; reports of non-dental VA examinations performed in February 1967, October 1974, November 1978, February 1980, December 1984, April, 1986, May 1986, July 1988, and December 2008; and VA treatment records dated from August 1974 through December 2008. Since the March 2009 denial, additional records have been associated with the claims file, including: additional arguments raised by the Veteran in newly received claims submissions and lay statements; the report from a VA dental examination conducted in November 2014; and records for additional VA treatment received by the Veteran through December 2014. The evidence associated with the claims file after the March 2009 denial includes private treatment records from Southwest Medical Center, dated July 2011, indicate that the Veteran was admitted and treated for a dislocated temporomandibular joint (TMJ). Overall, the evidence added to the record since the March 2009 denial shows that the Veteran has a current disability of the jaw. In conjunction with service treatment records that show that the Veteran did sustain mouth and dental injuries during service in August 1964, the newly associated evidence relates to the previously disputed question of whether the Veteran has a current dental disorders that may be related to his in-service injury, and moreover, raises the reasonable possibility that such disorder is related to his in-service injuries. In view of the foregoing, the Board finds that new and material evidence has been received as to the issues of the Veteran's claims for service connection for a low back disorder and for residuals of a mouth injury, to include loss of teeth. Accordingly, those claims for service connection are reopened. Those claims will next be addressed by the Board on a de novo basis, an action that will not prejudice the Veteran in light of the ultimate outcome. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER New and material evidence has been received, and the Veteran's previously denied claim for service connection for residuals of a traumatic mouth injury, to include loss of teeth, is reopened. REMAND Isolated records in the claims file from the Social Security Administration (SSA) show that the Veteran applied for social security disability benefits in 1981. A subsequent inquiry to SSA revealed that the Veteran has been receiving social security disability benefits since 2005. The record does not indicate the disabilities that served as the bases for SSA's award of disability benefits. Nonetheless, it seems likely that the Veteran's social security file contains additional treatment records that pertain to the disabilities claimed by the Veteran here on appeal. Accordingly, VA should undertake efforts to obtain the Veteran's social security records. 38 C.F.R. § 3.159(c)(2); see also Baker v. West, 11 Vet. App. 163, 139 (1998) (holding that VA's duty to assist includes obtaining SSA records); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to obtain social security records applies only to records relevant to a Veteran's present claim). Additionally, and in relation to the Veteran's claim for service connection for residuals of a traumatic mouth injury, to include loss of teeth, the Veteran was afforded a VA dental examination in November 2014. On review of the claims file, the examiner noted that the Veteran had not been diagnosed with an oral or dental condition, and indeed, appears to conclude that the Veteran does not have a current dental disorder. Contrary to the VA examiner's findings and conclusions, private hospital records dated July 2011 show that the Veteran was admitted and treated for a dislocated TMJ. Accordingly, the Veteran should be afforded a new VA dental and oral examination to explore for any current dental and oral disorders and whether any diagnosed disorders are related to his active duty service. 38 C.F.R. § 3.159(c)(4). Also, prior to arranging the examination ordered above, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other private or VA treatment providers who have rendered treatment for his claimed mouth and dental disorder, back disorder, right shoulder disorder, and right hip and lower extremity since December 2014. VA must then also make efforts to obtain any additional treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claims for service connection for residuals of a traumatic mouth injury, to include loss of teeth; a low back disorder; right shoulder disorder; and residuals of a hip fracture affecting the positioning of the right leg. The letter must inform the Veteran about the information and evidence that is necessary to substantiate his claims, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to obtain his social security records and to arrange a new VA dental and oral examination of his claimed mouth disorder. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claims. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) for any private or VA medical providers who have provided treatment for his claimed mouth and dental disorder, back disorder, right shoulder disorder, and right hip and lower extremity since December 2014. 2. Make efforts to obtain the Veteran's social security records and the records for any treatment identified by the Veteran. Records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the foregoing development has been performed to the extent possible, the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed residuals of his traumatic mouth injury, to include TMJ. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. For purposes of this examination, the examiner should note that the Veteran was treated during service for mouth and dental injuries in August 1964 and that the Veteran was treated for missing teeth and TMJ dislocation in March and July of 2011. A full examination, to include an interview of the Veteran and any tests and studies deemed necessary by the examiner, should be conducted. The examiner should provide a diagnosis corresponding to the Veteran's claimed mouth and dental disorder, to include TMJ. For any diagnosed disorder, the examiner should also consider and address the following questions: (a) was the current diagnosed disorder at least as likely as not (a 50 percent probability or greater) sustained by the Veteran during his active duty service? (b) is it at least as likely as not that the current diagnosed disorder was caused by or resulted from an injury, event, or illness sustained by the Veteran during his active duty service, to include his August 1964 injury? In rendering the requested diagnoses and opinions, the examiner should consider all other relevant evidence, to include the Veteran's lay assertions, service treatment records, and post-service treatment records. If the examiner is unable to provide any of the opinions requested above without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner's opinions and rationale should be expressed in a typewritten and legible report. 4. After completion of the above development, the issues of the Veteran's entitlement to service connection for residuals of a traumatic mouth injury, to include loss of teeth; a low back disorder; right shoulder disorder; and residuals of a hip fracture affecting the positioning of the right leg should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs