Citation Nr: 1634225	
Decision Date: 08/31/16    Archive Date: 09/06/16

DOCKET NO.  13-02 731	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim for service connection for gastritis.

2.  Whether new and material evidence has been received to reopen the claim for service connection for temporomandibular joint disorder (TMJ) disorder, claimed as due to bruxism.

3.  Entitlement to service connection for gastrointestinal disability, to include gastritis, gastreosephageal reflux disorder and irritable bowel syndrome.

4.  Entitlement to service connection for TMJ disorder.

5.  Entitlement to service connection for migraine headaches.

6.  Entitlement to service connection for low back disability, to include as secondary to service-connected disability.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION

The Veteran served on active duty from January 1997 to September 1998.

These matters come before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

In May 2016, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the electronic claims file.

This appeal was processed using the Virtual VA and VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

The issues of entitlement to service connection for gastrointestinal disability, TMJ, migraine headaches, and low back disability addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The RO denied service connection for gastritis in a February 1999 rating decision.  

 2. The evidence received since the February 1999 rating decision relates to an unestablished fact necessary to substantiate the claim for gastritis.

3.  The RO denied service connection for TMJ disorder (claimed as related to bruxism) in an April 2004 rating decision. 
 
 4. The evidence received since the April 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for TMJ disorder.


CONCLUSIONS OF LAW

1. The February 1999 rating decision denying the claim for service connection for gastritis is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2015).
 
 2. New and material evidence has been received; the claim for service connection for gastritis is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  The April 2004 rating decision denying the claim for service connection for TMJ disorder is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2015).
 
4. New and material evidence has been received; the claim for service connection for TMJ disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

Given the favorable disposition of the Veteran's requests to reopen, the Board finds that all notification and development actions needed to fairly adjudicate the claims have been accomplished.

II.  Law and Analysis

The Veteran seeks to reopen her previously denied claims for service connection for gastritis and TMJ.

In a February 1998 rating decision, the RO denied the claim for service connection for gastritis, noting that there was no evidence of gastritis in service, and no evidence of any chronic stomach condition at that time that related to military service.  The evidence of record at the time of the decision consisted of the Veteran's service treatment records and the report of a January 1999 VA examination, wherein the Veteran complained of acute stomach distress.

In an April 2004 rating decision, the RO denied service connection for TMJ disorder (claimed as related to bruxism), noting that while the evidence reflected that the Veteran suffered from TMJ disorder, there was no evidence of the condition in service or relating the disability to service or service-connected disability.  The pertinent evidence at that time consisted of the Veteran's service treatment records and VA treatment records dating from October 2003 to February 2004.

The Veteran did not appeal these decisions and new and material evidence was not received within the one-year appeal period following each decisions. Thus, the February 1999 and April 2004 decisions are final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103.

VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

For applications to reopen filed after August 29, 2001, as was the applications to reopen the claims in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513   (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).

The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material has been submitted is "low." The Board follows that threshold.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

Here, the newly submitted evidence included additional VA outpatient treatment records dated through 2010, the Veteran's May 2016 Board hearing testimony, and various written statements from the Veteran and her representative.

With respect to the Veteran's claim for service connection for gastritis, the newly-received evidence includes VA outpatient treatment records documenting treatment of gastroesphageal reflux disease (GERD) in additional to a small external hemorrhoid in 2004, as well as symptoms of rectal bleeding, and abdominal pain changes in stools pattern.  Treatment records document the Veteran's report that these episodes first began in 1997, when she was in service.  During the Veteran's Board hearing, she testified that her symptoms of reflux, nausea, diarrhea, and blood with stools started in service and had continued since that time.  She noted that she had current diagnosis of GERD and irritable bowel syndrome (IBS).

Here, the newly-received evidence includes treatment reflecting current diagnosis of gastrointestinal disability including GERD, and along with the Veteran's statements, places the onset of similar symptoms in service, providing a potential nexus to service-unestablished facts necessary to substantiate the claim.  The evidence is new, material and serves to reopen the claim.

In regard to the claim for service connection for TMJ disorder, the Board notes that evidence at the time of the prior final denial included diagnosis of TMJ, but there was no evidence of a link to service.  Newly-received VA treatment records document diagnosis of TMJ with a history of bruxism dating back to service.  During her Board hearing, the Veteran reported that she was diagnosed with bruxism in service, and it led to the development of her TMJ.  She noted that she had symptoms related to TMJ, including headaches, in service.

Again, this newly-received evidence provides a potential link to service-an unestablished fact necessary to substantiate the claim.  Accordingly, the evidence is new, material and serves to reopen the claim.


ORDER

The claim for service connection for gastritis is reopened.

The claim for service connection for TMJ disorder is reopened.


REMAND

The Board's review of the claims file reveals that additional development on the reopened claims for service connection, as well as the claims for service connection for migraine headaches and low back disabilities is warranted.  

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. 

With respect to the claim for service connection for gastrointestinal disability, the Veteran's service treatment records reflects that she was seen with complaint of diarrhea, bloody stools, nausea and vomiting in June 1997.  In March 1998, she complained of rectal bleeding and noted that she had diarrhea for the previous 11 days.  She was assessed with an anal fissure and external hemorrhoids.  On report of medical history at discharge in May 1998, the Veteran endorsed stomach or intestinal trouble, and noted that she "did not know" whether she had or ever had indigestion.  

Following service, a 1998 VA examination report indicates that the Veteran could not take NSAIDs because of acute stomach distress.  VA outpatient treatment records document diagnosis of GERD as early as 2003.  In addition, these records noted that she complained of a 7 year history of epigastric pain in March 2004, and a history of rectal bleeding and blood in bowel movements in April 2004.  Objectively, a small external hemorrhoid was indicated.  She was referred for outside gastrointestinal consult for colonoscopy and evaluation of bleeding.  

During the Veteran's Board hearing, she testified that she had experienced symptoms of stomach pain, nausea, reflux, diarrhea, and bloody stools since service.  She indicated that she was currently diagnosed with GERD and IBS, and while these were not diagnoses in service, the conditions began in service.  The Veteran's representative suggested that the Veteran's gastrointestinal condition could have been caused and/or aggravated by use of NSAID medication in service to treat her service-connected knee disabilities.  The Veteran also submitted a medical article noting that the cause of reactive gastritis included use of NSAID medication.

Given the foregoing, and that the Veteran has not been afforded an examination with respect to this claim, the Board believes that examination to determine the nature and etiology of the claimed gastrointestinal disability is warranted. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

With respect to the reopened claim for service connection for TMJ disorder, the Veteran testified that when she was examined by a dentist at the time of her out-processing for Medical Evaluation Board, she was told that she grinded her teeth and was assessed with bruxism. She noted that the dentist asked her if she had been having headaches, which she endorsed, and he noted that her teeth were ground down.  While bruxism is not noted on in-service dental records dated in May 1998 at the time of discharge from service, the Veteran did endorse headache on report of medical history at discharge.  In addition, the Veteran is competent to report what a doctor told her.  See Jandreau v. Nicholson, 492 F3d. 1372 (2007).

Post-service treatment records dated as early as 2003 reflect assessment of TMJ.  A May 2004 report notes a history of bruxism with orofacial in pain.  Signs and symptoms reportedly suggested that her pain was muscular in nature, due to oral parafunction.  In addition, January 2005, February 2006, and May 2009 VA treatment records indicate that the Veteran had a strong habitual clenching habit resulting in on-going jaw muscle pain at the bilateral masseter muscles and headache.  She has undergone Botox injection at the jaw on a few occasions.

Given the foregoing, and that the Veteran has not been afforded an examination with respect to this claim, the Board believes that examination to determine the nature and etiology of the claimed TMJ disability is warranted. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79 (2006).

In regard to the claimed headache disability, as noted above the Veteran's service treatment records reflect that she endorsed headache on report of medical history at discharge in May 1998.  Also as noted above, post-service VA treatment records document headaches associated with her jaw pain. A November 2004 VA treatment report notes complaint of TMJ pain, which the Veteran indicated began in the jaw and spread to affect the face, including photophobia and headache.  Continued treatment records document headache associated with TMJ.

In January 2008, the Veteran requested an outside headache consult.  At that time, she reported that her headaches started 10 years ago, and she noted that she was involved in a motor vehicle accident during which the airbag was deployed, prior to the onset of headache.  Headaches initially occurred about 2 times per month, and had gradually increased to almost daily.  She indicated that she experienced 6 different kinds of headache, sometimes around the eye sockets, or the temples, or the jaw.  It was noted that she did grind her teeth at night.  She was assessed with daily headache syndrome.

Accordingly, the Board also believes that examination is needed to determine the nature and etiology of the claimed headache disability.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79 (2006).

In addition, to the extent that the Veteran contends that her headaches are caused or aggravated by the claimed TMJ disorder, this matter is inextricably intertwined with the claim for service connection for TMJ disorder.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  As the claims should be considered together, it follows that, any Board action on the claim for service connection for headaches, at this juncture, would be premature.

With respect to the claimed low back disability, the Board notes that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

In this case, the Veteran contends that her low back disability is secondary to her service-connected bilateral patellar tendonitis and instability of the knees.  On VA examination in April 2009, and during her Board hearing, she testified that her back pain began when in service, when she was prescribed orthotics for her knees.

On VA examination in April 2009, the examiner diagnosed with multilevel degenerative disc disease, spina bifida occulta anomaly L5 and S1, and lumbago.  The examiner determined that the Veteran's degenerative disc disease and spina bifida occulta abnormality were less likely as not resultant from or aggravated beyond a natural progression by the Veteran's service connected knee disabilities.  In so finding, the examiner noted that the Veteran's degenerative disc disease is multifactorial and caused by the Veteran's genetics, activities, and weight.  Her patellar tendinitis would not cause enough alteration in her gait that would cause or aggravate degenerative changes in her spine, or any aggravation of the congenital abnormality of spina bifida occulta.  

However, the examiner did not indicate whether the disability had its onset in service, or was otherwise medically related to service, to include the Veteran's report that her symptoms began in service.  Moreover, he did not indicate whether the Veteran's "activities" in service could be responsible for her current back disability.  Accordingly, the Board finds this examination inadequate, and remand for additional examination with opinion on the etiology of the Veteran's claimed low back disability is warranted.

Finally, the record reflects that VA treatment records dated through November 2010 are associated with the electronic claims file.  While these matters on remand, VA treatment records from November 2010 to the present should also be obtained. See 38 C F R. § 3 159; Bell v Derwinski, 2 Vet. App 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain from the VA Medical Center all outstanding, pertinent records of evaluation and/or treatment of the since November 2010. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file.
 
 2. The AOJ should take appropriate steps to send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal. In this regard, VA treatment records document that the Veteran has been referred for outside gastrointestinal and headache consults.  The Veteran should be asked to identify these and any other outstanding treatment records.  

If the Veteran identifies any other pertinent medical records that have not been obtained, the AOJ should undertake appropriate development to obtain copies of those records.

3.  After the Veteran responds and all available records and/or responses from each contacted entity are associated with the claims file, the Veteran's claims file should be forwarded to an appropriate examiner for opinion on the nature and etiology of the claimed gastrointestinal disability.

The examiner should clearly identify all diagnosed gastrointestinal disability(ies).  Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the gastrointestinal disability first manifest in service or is otherwise medically related to service, or was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by a service-connected disability, to specifically include any NSAID medication used to treat her service-connected knee disability. 

If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible.

The examiner is asked to specifically consider and address the Veteran's service treatment records documenting complaints and treatment of gastrointestinal symptoms, as well as notation of acute gastric problems on 1999 VA examination and VA treatment records documenting diagnosis of GERD and noting a history of symptoms dating back to service.

The examiner is advised that the Veteran is competent to report her symptoms and treatment, and that her reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

4.  The Veteran's claims file should be forwarded to an appropriate examiner for opinion on the nature and etiology of the claimed TMJ disorder.

The examiner should clearly identify all diagnosed TMJ disability(ies).  Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the TMJ disability first manifest in service or is otherwise medically related to service.

The examiner is advised that the Veteran is competent to report her symptoms and treatment, and that her reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.  In particular, the examiner is asked to consider and address the Veteran's report of bruxism assessed in service.

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

5. The Veteran's claims file should be forwarded to an appropriate examiner for opinion on the nature and etiology of the claimed headache disorder. The entire claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  All necessary tests should be conducted and the results reported.

Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's headaches manifest in service or is otherwise medically related to service, or was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by a TMJ disorder.

In providing the requested opinion, the examiner should consider and address the report of headaches associated with jaw pain as well as the endorsement of headaches on report of medical history at discharge and the Veteran's report of bruxism in service.

The examiner is also advised that the Veteran is competent to report her symptoms and treatment, and that her reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.  

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

6.  The Veteran's claims file should be forwarded to an appropriate examiner for opinion on the nature and etiology of the claimed low back disability. The entire claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  All necessary tests should be conducted and the results reported.

The examiner should clearly identify all diagnosed low back disability(ies).  Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any low back disability first manifest in service or is otherwise medically related to service, or was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by a service-connected disability, to specifically include her service-connected knee disabilities and resulting impairment in gait. 

The examiner is advised that the Veteran is competent to report her symptoms and treatment, and that her reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.  The examiner should consider and address the Veteran's report of onset of symptoms in service.

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

7.  The AOJ should undertake any additional development deemed warranted.
 
 8. Then, AOJ should readjudicate the Veteran's claims for service connection.  If the benefits sought on appeal are not granted, the Veteran and her 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.

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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs