Citation Nr: 1751642 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-32 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for temporomandibular joint dysfunction (TMJ), also claimed as nerve damage to upper and lower left side of jaw. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from May 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was processed using the Virtual VA and Virtual Benefits Management System (VBMS) paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. REMAND Although the Board regrets the additional delay, it finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim, so as to afford him every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran asserts that he developed TMJ, as well as nerve damage to his jaw, as a result of the in-service removal of two of his teeth, performed in the field and with the aid of a hammer and chisel. His service treatment records show that he had two teeth extracted while serving in Vietnam; the first was in May 1969 and the second in August of that year. The record contains no less than four separate medical opinions which address a link, if any, between the Veteran's in-service extraction and his current dental conditions. For the reasons explained below, the Board finds that none of the opinions are adequate for purposes of deciding the Veteran's claim, and thus the appeal must be remanded to the AOJ for further development. In July 2013, the Veteran underwent a VA TMJ Conditions examination. At that time, the diagnosis of TMJ was confirmed. The Veteran reported that his jaw often popped out of joint, reducing his ability to chew hard foods and resulting in pain on the left side. Examination showed some evidence of painful motion, in addition to weakened movement and excess fatigability. The examiner determined that he would not be able to opine on a link between the Veteran's TMJ and the in-service extraction without resorting to speculation. That same VA dentist provided an addendum later that month, in which he determined that the Veteran had teeth extracted from the right side of his jaw while in service. He concluded, based up on the record, that it was less likely than not that the Veteran's left side TMJ was a result of the removal of his left-side wisdom teeth. The dentist provided no rationale for such a conclusion. In October 2013, the same VA dentist provided a second addendum opinion. When asked to opine on the Veteran's TMJ and the in-service tooth removal, as well as the Veteran's claims of damage to the nerves, ligaments and muscles on the left side of his face due to the same, the dentist concluded in a single sentence that the Veteran's TMJ was less likely as not caused by, or a result of, the tooth removal. Again, there was no rationale provided for such a conclusion. In a September 2015 letter, the Veteran's dentist of 8 years, Dr. V.R., authored a letter in which he stated that, based on his training and experience, the Veteran's in-service tooth removal "could have contributed" to his TMJ. In a November 2015 letter, Dr. V.R. indicated that it was at least as likely as not that the Veteran's in-service extractions caused the TMJ. He did not provide any explanation or rationale for his conclusion. Finally, in April 2016, the Veteran underwent a VA contract examination. At that time, the physician who examined the Veteran concluded that it was less likely than not that his in-service extraction caused his TMJ. In support of this conclusion, she indicated there was no relation between the extraction surgery and the joint affected by TMJ. The Board finds that the record does not include adequate medical opinion evidence, which is necessary to properly resolve the Veteran's claim for service connection. Neither the July/October 2013 VA examiner nor the April 2016 VA physician provided any rationale for their respective conclusions. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the July 2013 addendum from the VA dentist was internally inconsistent, as it indicated the Veteran had teeth extracted from both sides of his jaw while in service, contrary to the medical record of evidence. Further, the September 2015 letter from Dr. V.R. is couched in terms of probability ("could have"). See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a medical nexus). Therefore, it is afforded no probative weight on the question of etiology. And, like the VA opinions, Dr. V.R.'s subsequent letter in November 2015 provided no rationale for its conclusion. In addition, none of the dentists or examiners who provided opinions adequately addressed the Veteran's contention that, in addition to TMJ, the in-service extraction caused a disability that is manifested by nerve, ligament and muscle damage to his face. Once VA has provided an examination, it is required to provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Therefore, the Board finds that an additional VA examination is warranted, preferably by a different VA dentist than previously used, in order to ensure compliance with the Board's remand orders and to obtain a medical opinion which fully addresses the Veteran's claim. While on remand, the Veteran should also be given an opportunity to submit any private records or medical opinion concerning the etiology of his diagnosed TMJ. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and afford them the opportunity to submit any additional private medical opinions, to include any additional clarification from Dr. V.R. with respect to the etiology of the Veteran's dental condition(s). The AOJ should associate any additional evidence submitted by the Veteran with the claims file. 2. The Veteran's file should be provided to an appropriate VA medical professional, preferably one other than the VA dentist who authored the July/October 2013 medical opinions, for purposes of review and to provide an opinion regarding the etiology of the Veteran's various dental condition(s). An examination of the Veteran is not required unless deemed necessary by the medical professional selected to proffer the opinion. The record, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Following a thorough review of the record, and taking into consideration the Veteran's lay statements, the examiner is asked to address the following: a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's TMJ began during, or is otherwise etiologically related to, his active duty service, to specifically include an in-service tooth extraction. b) Does the Veteran currently have a disability of the jaw, other than TMJ, that is manifested by nerve, ligament and muscle problems? If so, is it at least as likely as not (i.e. a 50 percent or greater probability) that such disability is etiologically related to his active duty service, including but not limited to his in-service tooth extraction? All opinions provided must be accompanied by clear rationale consistent with the evidence of record. If any requested opinion cannot be provided without resorting to speculation, the medical professional should state and explain why this is so. 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). _________________________________________________ L.M. BARNARD 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 this appeal. 38 C.F.R. § 20.1100(b) (2017).