Citation Nr: 1605379	
Decision Date: 02/11/16    Archive Date: 02/18/16

DOCKET NO.  14-04 300	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a left hip disorder.

2.  Entitlement to service connection for a right hip disorder.

3.  Entitlement to service connection for temporomandibular joint (TMJ) dysfunction.  

4.  Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease (DJD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

K. Hughes, Counsel


INTRODUCTION

The Veteran served on active duty from May 1986 to January 1990 and May 1995 to September 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  These claims are under the jurisdiction of the RO in Philadelphia, Pennsylvania.  Notably, the TMJ claim was initially characterized as right TMJ; however, in his notice of disagreement, the Veteran indicated that his TMJ is on both sides.  Accordingly, the matter is characterized as shown above.  See Notice of Disagreement received August 2012.

The Veteran testified before the undersigned Veterans Law Judge at a hearing in October 2015.  A transcript of the hearing has been associated with the claims file.

The matter of an increased initial rating for left knee DJD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On the record during his October 2015 hearing, the Veteran withdrew his appeal as to the matters of service connection for left and right hip disorders.

2.  The Veteran's TMJ dysfunction began in service and has persisted since.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal are met with respect to the claims of service connection for left and right hip disorders; the Board has no further jurisdiction to consider an appeal as to these matters.  38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

2.  The criteria for service connection for TMJ dysfunction have been met.  38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawn Issues

The Board was notified of the Veteran's desire to withdraw his appeal as to the matters of service connection for left and right hip disorders.  See October 2015 hearing transcript.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  The Veteran has properly withdrawn his appeals seeking service connection for left and right hip disorders.  Therefore, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed.

Service Connection

Inasmuch as this decision grants service connection for a TMJ disability, any notice or duty to assist omission is harmless.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

The Veteran is seeking service connection for TMJ disease, which he testified had onset in service.

The Veteran's service treatment records (STRs) include a November 2008 Dental Exam report which notes that his TMD (temporomandibular dysfunction) was "asymptomatic."  

On July 2011 medical assessment, the Veteran reported TMJ as a dental problem.  

A July 2011 predischarge dental examination report notes that the Veteran had "loud popping and crepitus upon opening of the jaw and closing," "discomfort when opening wide and if chewing chewy foods," and "[d]iscomfort upon palpation of joints bilaterally when open."  The examiner found that, for the Veteran's "TMJ condition, the diagnosis is Nocturnal Bruxism" manifested by findings of crepitus, loud popping and joint discomfort on palpation and complaints of pain and achy jaws when trying to open very wide or eating chewing foods.  

During his October 2015 hearing, the Veteran recalled that his jaws popped and froze during service.  He exercised the jaw and it returned to normal after about a week.  He stated that the popping recurs after yawning.  

The Veteran currently has a TMJ condition, diagnosed as bruxism, manifested by popping, crepitus and discomfort.  

In light of the Veteran's testimony describing onset of his TMJ symptoms in service, which is corroborated by documentation of asymptomatic TMD during November 2008 dental treatment and on July 2011 predischarge dental examination, the Board finds that the Veteran's TMJ dysfunction began in service and has persisted since.  Resolving reasonable doubt in the Veteran's favor (as mandated by law under 38 C.F.R. § 3.102), the Board concludes that service connection for TMJ dysfunction is warranted.


ORDER

The appeal as to the matters of service connection for left and right hip disorders is dismissed.

Entitlement to service connection for TMJ dysfunction is granted.


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his left knee DJD increased rating claim.  See 38 C.F.R. § 3.159.

During his October 2015 hearing, the Veteran essentially testified that his left knee disability had increased in severity.  Specifically, he reported that the knee "rocks out of joint" and he wears a knee brace to prevent the knee from collapsing (which has happened 5 times).  The allegation of worsening of the severity of his claimed disability, and the prolonged intervening period since his most recent July 2011 VA examination, require the Board to remand the claim for a contemporaneous examination to assess the current severity of his left knee DJD.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Although the Veteran testified that he has not received medical treatment for his knee disability, in light of this remand, any pertinent treatment the Veteran may have received since the October 2015 hearing should be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Give the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal.  After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained.

2.  After completion of the foregoing, schedule the Veteran for an appropriate VA examination to evaluate the severity of the service-connected left knee DJD.  Copies of all pertinent records should be made available to the examiner for review. 

All indicated tests should be conducted.  The examiner is requested to delineate all symptomatology associated with, and the current severity of, the Veteran's left knee DJD.  The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. 

The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made 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.

3.  After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence.  If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond.  The case should then be returned to the Board for further consideration.

The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs