Citation Nr: 1751634 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-22 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a temporomandibular joint (TMJ) disability. 2. Entitlement to service connection for headaches, including as secondary to service-connected residuals of a right ear tympanic membrane perforation with hearing loss (right ear disability). 3. Entitlement to service connection for a right eye disability manifested by twitching, including as secondary to service-connected right ear disability. 4. Entitlement to service connection for scar residuals secondary to service-connected right ear disability. 5. Entitlement to service connection for a right ear disability manifested by symptoms such as recurrent infections, fullness, and pain, including as secondary to service-connected right ear disability. 6. Entitlement to service connection for a TMJ disability, including as secondary to service-connected right ear disability. 7. Entitlement to a compensable rating for service-connected right ear disability. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1974 to November 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). The Board notes that, in addition to these matters, the Veteran also appealed the rating for service-connected tinnitus. However, in a July 2013 substantive appeal following the issuance of a June 2013 statement of the case (SOC), the Veteran clearly limited her appeal, explicitly omitting the matter involving tinnitus. Thus, that matter is not before the Board. Moreover, the Veteran has filed a claim seeking a TDIU based on service-connected disabilities during the pendency of this appeal, which includes an increased rating claim. Therefore, that matter is part and parcel of the increased rating claim already on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The issues of entitlement to VA compensation benefits under 38 U.S.C. § 1151 for residuals of a January 5, 2017 video-assisted thoracoscopic surgery (VATS) wedge resection of a right upper lobe mass and entitlement to special monthly compensation based on housebound status or the need for regular aid and attendance due to left temporal lobe intracranial hemorrhage, status post craniotomy have been raised by the record in October 2017 correspondences, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of service connection for headaches, right eye disability, right ear infections, and TMJ disability as well as increased rating for service-connected right ear disability and entitlement to a TDIU are REMANDED to the AOJ. FINDINGS OF FACT 1. An unappealed July 2009 rating decision denied the Veteran service connection for a TMJ disability because no such disability was shown and there was no evidence of treatment for such disability in service; that decision became final based on the evidence then of record and is the prior final denial in this matter. 2. Evidence received since the July 2009 decision includes evidence not of record at that time; tends to show the Veteran has been diagnosed with TMJ that is allegedly related to her history of tympanoplasties and service-connected right ear disability; relates to an unestablished fact necessary to substantiate the underlying claim of service connection; and raises a reasonable possibility of substantiating that claim. 3. The evidence is at least in relative equipoise as to whether the Veteran sustained a residual postauricular scar from her in-service right ear tympanoplastic surgery; the Veteran is service-connected for residuals of a perforated tympanic membrane that was treated surgically in service and records of a second right tympanoplastic surgery in June 2004 note a pre-existing postauricular scar that doctors felt was indicative of prior surgery before proceeding to make the same exact incision. CONCLUSIONS OF LAW 1. New and material evidence has been received; service connection for a TMJ disability is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. Service connection for a right ear residual scar, as secondary to service-connected right ear disability, is warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). ORDER Service connection for a TMJ disability is reopened. Service connection for a right ear residual scar is granted. REMAND Regrettably, additional development is needed before these matters may be adjudicated properly. First, the Board notes that the Veteran was afforded an October 2011 VA examination to assess her headaches. However, that examiner's negative nexus opinion, which indicates that the Veteran's current migraine headaches are unrelated to tension headaches in service because they are more likely related to fibromyalgia, also concedes that fibromyalgia is also productive of the type of headaches noted in service. Thus, it appears the examiner failed to consider whether the tension headaches in service and the postservice migraines are both related to fibromyalgia, and thus whether the migraines are, effectively, a progression of the tension headaches noted in service. Moreover, the examiner also opines that the Veteran's headaches are aggravated by her right ear infections when present, and thus leaves the matter inextricably intertwined with the claim seeking service connection for such disability, which remains on appeal and is also being remanded. Second, the Board notes that the Veteran is competent to report observable symptomatology such as twitching of the right eye, and VA treatment records include several notations of astigmatism and bilateral cataracts. However, the Veteran has somehow not been afforded a VA examination to determine the nature and likely etiology of her alleged right eye disability, to include consideration of whether it may be secondary to service-connected right ear disability and its complications. The Board finds the low threshold for determining when VA is obliged to provide such an examination is met. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Third, the Veteran has alleged that she has a disability manifested by various right ear symptoms (e.g., fullness, congestion, and ear infections). While VA treatment records clearly show the Veteran has a history of recurrent right ear otitis and ceruminosis, an ear, nose, or throat (ENT) examination was not ordered in conjunction with this claim to determine whether or not such problems may be secondary to her service-connected right ear disability. Moreover, the Board notes that it must also determine whether any current right ear pathology is a separate disability from-and, if so, whether such is nonetheless secondary to- her service-connected right ear disability or whether such pathology is simply a manifestation of her service-connected residuals of right ear tympanic membrane perforation. Thus, an ENT examination is needed for both the claim of service connection for a separate right ear disability as well as the increased rating claim for service-connected right ear disability. Fourth, although the Veteran has alleged that her TMJ disability is secondary to her service-connected right ear disability, there is no examination or opinion in the record which discusses this theory of entitlement. The only VA examination in the record, conducted in June 2009, includes no etiological opinion at all. Thus, a new examination is needed. Finally, the Board notes that the TDIU claim raised by the record is inextricably intertwined with all other claims being remanded, and therefore adjudication of that matter must be deferred pending resolution of the other matters on appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated records of VA or adequately identified private evaluations or treatment the Veteran has received for the disabilities remaining on appeal. All records/responses received must be associated with the electronic claims file. 2. Then, arrange for the Veteran to be examined by a neurologist to determine the nature and likely etiology of her headaches. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should opine whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's current headaches are related to service. In so finding, the examiner must consider the October 2011 VA examiner's opinion relating her current migraine headaches to fibromyalgia but, in light of that examiner's explanation that fibromyalgia can involve both migraines and tension headaches (such as those noted in service), the examiner should discuss whether both the headaches in service and the current migraine headaches are both related to underlying fibromyalgia or whether the Veteran's current migraines may otherwise be a progression of her tension headaches in service. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, arrange for the Veteran to be examined by an ophthalmologist to determine the nature and likely etiology of her alleged right eye disability. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: a. Please identify all right eye disability entities found, to include any such disabilities manifested by twitching. b. For each right eye disability identified, please opine whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran's service, to include notations of neurological symptoms (such as headaches) and eye complaints (defective visual activity, blurred vision, and poor distant vision) noted therein. c. For each right eye disability identified, please opine whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY her service-connected right ear tympanic membrane perforation residuals. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Then, arrange for the Veteran to be examined by an ENT specialist to determine the nature, likely etiology, and current severity of her right ear disabilities. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: a. Please identify, by diagnosis, all right ear disability entities found. b. For each right ear disability diagnosed, please opine whether such is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) a manifestation of her service-connected right ear tympanic membrane perforation residuals OR a separate disability. c. ALL DISABILITIES AND PATHOLOGY felt to be manifestations of her service-connected right ear tympanic membrane perforation residuals must be described in sufficient detail to allow for application of the relevant rating criteria. The examiner must also note any functional impairment due to such pathology. d. For each right ear disability that is felt to be SEPARATE FROM her service-connected right ear tympanic membrane perforation residuals, please opine whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is nonetheless CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY the Veteran's service-connected right ear perforated tympanic membrane residuals. The examiner should consider and discuss, as necessary, the significance of the fact that the Veteran's in-service ear complaints involved recurrent otitis and that, postservice, he underwent a second tympanoplastic surgery and has had recurrent ear complaints since, including (but not limited to) otitis, ceruminosis, cholesteatoma, tympanic keratin pearl, ear ache, eustachian tube dysfunction, and otorrhea. The examiner should specifically address whether the second right ear surgery and current ear complaints represent remote residuals or recurrences of the ear problems treated in service. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. Then, arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of her TMJ disability. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should opine whether it is: a. AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's TMJ disability is related to service, to include ear complaints therein; or b. AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's TMJ disability is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY her service-connected right ear tympanic membrane perforation residuals. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 6. The AOJ should then review the record and readjudicate the claims, including TDIU, after arranging for any additional development indicated (e.g., medical opinions regarding the occupational impact of service-connected disabilities or disabilities deemed service-connected on remand). If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and her representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs