Citation Nr: 1751117 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-09 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a sleep disorder. 2. Entitlement to service connection for grinding of teeth, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2002 to May 2007, including service in Iraq. His decorations include a Combat Action Ribbon and a Rifle Marksman Badge. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this case for additional development in February 2016. The case has been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. The issue of sleep disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record establishes that the Veteran has a disability of grinding teeth, which is at least as likely as not related to the Veteran's service and or his service connected PTSD. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for grinding of teeth have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. As for the claim for grinding of teeth, the Board is granting in full the benefit sought on appeal. Therefore, the Board need not discuss whether there has been compliance with the VCAA because any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2016). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran seeks for entitlement to service connection for teeth grinding. First, the Board finds that the Veteran has reported a diagnosis of bruxism since 2004, during the Veteran's service. The Veteran consistently reported that he started to grind his teeth during his combat experiences where he witnessed killings; he explains that he ground his teeth to prevent from being shocked and feeling nervous. See, e.g., February 2017 VA temporomandibular joint condition examination; December 2009 Veteran's statement. In addition, as reported in the VA examination, the Veteran's molar teeth bilaterally show severe occlusal attrition as pertinent physical findings, complications, conditions, signs or symptoms of his bruxism. This suggests the pathology was ongoing for some time. It is also noted that during service dental records suggest that he used a retainer, for at least part of his service. Based on the above evidence, the Board concludes that the Veteran as likely as not started to grind his teeth while in service and he currently suffers from the effect of teeth grinding, establishing the current diagnosis and the in-service elements of the requirements for service connection. As for the nexus element, the evidence is in equipoise. The Veteran explains, as noted above, that he started to grind his teeth while in combat to avoid feeling anxious and shocked, whereas the VA oral surgeon, who examined the Veteran in February 2017, gives an inconclusive opinion on nexus stating that the etiology of bruxism is multifactorial and he needs to speculate and deferred the issue to a psychologist. See February 2017 VA temporomandibular joint condition examination. Subsequent to the February 2017 examination, the Veteran was evaluated by a VA clinical psychologist in March 2017, who opined that the issue was outside of her scope of practice and deferred it to a medical professional, though she noted that she was not aware of any evidence in the psychological research literature which demonstrated a causal link between bruxism and PTSD. See March 2017 VA PTSD examination. Review of the Internet suggests at least some anecdotal evidence that there might be a relationship between bruxism and stress. The Board finds that the Veteran's lay statement concerning the nexus between his teeth grinding and his combat experiences in service more probative especially in light of the medical examiners' inconclusive opinions on the issue. First, the Veteran is competent report when he started to grind his teeth based on observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that a lay person is competent to report observable symptomatology of an injury or illness). Next, the Board finds that the Veteran's statement is credible because his explanation for the reasons for his teeth grinding seems facially plausible in combat situations that he was in and the record indicates that he consistently provided the same reasons for his disorder. In fact, the evidence of record does not contain any information that contradicts his explanations. Therefore, in light of the inconclusive opinions provided by the medical examiners and the absence of contradictory information in evidence, the Board finds that the Veteran's statement is more probative and material in determining the case. In short, there is sufficient evidence to grant the claim. The Board finds that the evidence presently before the Board is approximately evenly balanced as to whether his grinding of teeth is related to his service. As such, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding...benefits."). To the extent this disorder may be in part a symptom of his PTSD, further development is indicated and a decision on that matter is not reached by the Board. ORDER Entitlement to service connection for teeth grinding is granted. REMAND As for the sleep disorder issue, the Board finds that another remand is necessary to provide the Veteran an opportunity to undergo sleep study that was requested for him by a VA medical examiner. Prior to the February 2016 Board remand, the Veteran had undergone VA PTSD examinations, in which he reported having impaired sleep, but there was no medical opinion as to whether the Veteran's reported impaired sleep symptoms were indicative of a sleep disorder independent of PTSD, or were solely symptoms of his service-connected PTSD. Accordingly, in February 2016, the Board remanded for a medical opinion on this issue. The medical opinion requested was obtained in February 2017, in which a VA physician reviewed the Veteran's claims file and conducted an in-person interview. The examiner found that the Veteran had not had sleep apnea and also currently did not have any findings, signs, or symptoms attributable to sleep apnea, even though the Veteran seemed to have reported symptoms of sleep apnea. It was noted that some of the sleep complaints were attributed to the PTSD. Before making a final conclusion as to the sleep apnea, however, the examiner requested a sleep study. The record indicates that VA's Neurology Sleep Department sent a letter to the Veteran requesting to contact VA in order to schedule a sleep study in March 2017. There apparently was no reply or other attempt to schedule a sleep study. Although a copy of letter to the Veteran asking to schedule a sleep study has been documented as part of the medical records at the VAMC, it is not clear whether the letter has indeed been mailed to the Veteran or if the Veteran received it. In order to provide the Veteran every possible opportunity to prove his claim, an additional attempt at scheduling him for the sleep study will be made. Accordingly, the case is REMANDED for the following action: 1. Mail a letter to the Veteran to schedule a sleep study at a VA medical center to determine whether the Veteran has a current diagnosis of a sleep disorder, to include sleep apnea. The correspondence between VA and the Veteran on this matter must be documented in his claims file. If he no longer desires a sleep study he is asked to let the AOJ and/or medical center know, and that information should be placed in the file. If he does not report, it should be clearly indicated in the record the address to which the notice was sent, and that it was not returned as undeliverable. 2. Then, the AOJ should readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for a response, and then return the case to the Board for further appellate action. The Veteran 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 D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs