Citation Nr: 1609712 Decision Date: 03/10/16 Archive Date: 03/22/16 DOCKET NO. 09-18 951A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a mouth disability, to include temporomandibular joint disorder (TMJ) and bruxism, to include as secondary to service-connect generalized anxiety disorder, posttraumatic stress disorder, chronic. 2. Entitlement to a an increased rating for generalized anxiety disorder, posttraumatic stress disorder, chronic, evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Jones, Associate Counsel INTRODUCTION The Veteran had active military service from September 1968 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Atlanta, Georgia, which, in pertinent part, denied service connection for TMJ. Thereafter, jurisdiction was transferred to the RO in Roanoke, Virginia. In April 2011, the Veteran testified before the undersigned at a Board hearing. A transcript of the hearing has been reviewed and associated with the claims file. This matter was before the Board in June 2011, at which time it was remanded for further development, to include providing the Veteran with a VA examination. A review of the record reflects diagnoses for mouth conditions, including TMJ and bruxism. Accordingly, the Board has recharacterized the issue on appeal as entitlement to service connection for a mouth condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). When last before the Board, a claim of entitlement to an increased rating was remanded so that the RO could issue a statement of the case. That has been accomplished. In a November 2013 statement the Veteran indicated that it was not his intend to seek a higher rating for hearing loss. Thus, an appeal on this issue has not been perfected and it will not be addressed in the present decision. The issue of entitlement to an increased rating for tinnitus has been raised by the record in a November 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran asserts that service connection is warranted for a mouth condition. Specifically, he asserts that his mouth condition is related to an in-service assault where he was beaten by three men. He also asserts that the condition is caused or aggravated by his service-connected acquired psychiatric disorder. A review of the service treatment records demonstrates that in June 1970, the Veteran was assaulted by three individuals, resulting in a tongue laceration and abrasion and hematoma around the right eye. Pursuant to the Board's June 2011 remand directives, the Veteran was afforded a VA examination in May 2013. The examiner noted that the Veteran had several congenitally missing teeth as evidenced by military panoramic radiograph. Oral/paraoral and radiographic examinations were normal. There was no missing substance of the maxilla, mandible, or hard palate. There was no limitation in range of motion on opening/closing at 44 mm and on lateral excursive movements at 10 mm. There was no popping/clicking or crepitus of either TMJ. There were no problems or pain associated with repetitive motion and normal functions. The Veteran had a congenitally Dental Class 3 malocclusion or prognathic mandible and 6 congenitally missing teeth resulting in large spaces between some teeth and poor occlusion in general. The examiner further noted that there was severe anterior crossbite, which caused him to function abnormally. The examiner opined that according to military records, panographic radiograph, and the claims file, the Veteran never had any TMJ or occlusal related problems or a history of trauma to the TMJ or any oral structure, as documented by both entry and exit military physicals. There was no record of any trauma to the head and neck in the dental records which were reviewed. The examiner opined that the Veteran's claim of TMJ problems related to his in-service facial trauma was not related to that incident and that he had a history of bruxism related to his congenitally Dental Class 3 malocclusion, missing teeth, and generally poor occlusion. The examiner further determined that the issue was associated with bruxism and not TMJ, that it was congenital in nature, and not acquired while in service. Thus, discussion of aggravation was not appropriate or addressed. The Board notes that congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2013). A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90 (1990). A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Service connection may be granted for diseases of congenital, developmental, or familial origin, but not for defects, unless such defect was subject to superimposed disease or injury during military service. Such a disease, by its very nature, preexists a claimant's military service, and typically, entitlement to service connection turns on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. In light of the above, the Veteran should be afforded an additional VA examination to determine the etiology of any current mouth disability. Furthermore, a November 2013 statement is construed as a notice of disagreement on the rating of the Veteran's generalized anxiety disorder, posttraumatic stress disorder, chronic. A statement of the case must be issued so that he may perfect an appeal on this claim if he so chooses. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, by an examiner who has not previously examined the Veteran, to determine the etiology of any mouth condition, to include TMJ and bruxism. The claims folder, including this remand, must be reviewed by the examiner and consideration of such should be reflected in the examination report. The examiner is to identify all mouth disabilities found on examination. Thereafter, the examiner should provide an opinion for the following: a. Whether any diagnosed mouth condition is a congenital defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990).] b. For any diagnosed mouth condition that is a congenital defect, is it at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional mouth disability? c. If any mouth condition is a congenital disease, then state whether it is clear and unmistakable that the condition preexisted the Veteran's military service. If so, is it clear and unmistakable that the preexisting mouth condition WAS NOT aggravated (i.e., permanently worsened) during the Veteran's military. d. For any mouth condition that is not a congenital defect or disease, is it at least as likely as not (50 percent probability or more) that the mouth disability had its onset during Veteran's period of active military service? The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must discuss the June 1970 in-service assault and what, if any, relationship it has to any current mouth disability. The examiner must also acknowledge and consider the lay statements of record when formulating any opinions. 2. Issue a statement of the case on the issue of entitlement to a rating in excess of 50 percent for generalized anxiety disorder, posttraumatic stress disorder, chronic. Only if a timely substantive appeal is received should this issue be returned to the Board. 3. If the benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. 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 2014). _________________________________________________ ERIC S. LEBOFF 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) (2015).