Citation Nr: 1752377 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-06 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the cervical spine (claimed as neck pain), to include as secondary to service-connected temporomandibular joint disorder (TMJ). 2. Entitlement to service connection for headaches, to include as secondary to service-connected TMJ. 3. Entitlement to service connection for muscle spasms, to include as secondary to service-connected TMJ. 4. Entitlement to service connection for peripheral vestibular disorder (claimed as vertigo), to include as secondary to service-connected TMJ. 5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Yuskaitis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1984 to January 1987 and January 1991 to May 1991 with verified and unverified periods of reserve service between the periods of active service until service separation in 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. An April 2013 rating decision denied the claim for a TDIU. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a September 2014 videoconference hearing. A transcript of the hearing is of record. In an August 2015 decision, the Board previously remanded the issue of entitlement to a TDIU for additional development. A June 2016 rating decision denied service connection for degenerative disc disease of the cervical spine (claimed as neck pain), headaches, muscle spasms, and peripheral vestibular disorder (claimed as vertigo). By way of background, the Board notes that the issue initially certified to the Board on appeal was entitlement to a TDIU. Upon review of the claims file, and during the pendency of this issue on appeal, the appeal of four additional service connection issues was separately certified to the Board. The Board has merged all of the issues into a single appeal and will be taking action on all four issues herein. The issue of entitlement to an increased rating for service-connected TMJ has been raised by the record in a March 2017 correspondence from the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Effective March 24, 2015, when a claimant submits a communication indicating desire to file a claim for benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.350 (a) (2017). When such a communication is received, the AOJ shall notify the claimant of the information needed to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155 (a) (2017); 79 Fed. Reg. 57, 660 (Sept. 25, 2014). A complete claim on an application form designed for the purpose is required for all types of claims. 38 C.F.R. § 3.155 (d) (2017). This request is referred to the AOJ for appropriate action to be determined by the AOJ in accordance with the revised regulations. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that his headaches, muscle spasms, degenerative disc disease of the cervical spine and vertigo are related to his service or, in the alternative, is caused or is aggravated by his service-connected disabilities. (a) Service connection for degenerative disc disease of the cervical spine The Veteran was afforded VA examinations in May 2016 to address whether the Veteran's degenerative disc disease of the cervical spine was caused or aggravated by his service-connected TMJ disability. The Board finds the May 2016 VA examinations inadequate. The May 2016 VA examiner noted the Veteran had been degenerative disc/joint disease of the cervical spine in 2010. However, review of the medical evidence of record shows a diagnosis of degenerative disc disease of the cervical spine at least as early as October 2005. The VA examiner opined that the Veteran's degenerative disc disease of the cervical spine was less likely than not proximately due to or the result of the Veteran's service-connected TMJ disability. The VA examiner provided that there was no medical body of literature linking TMJ to the development of neck pain as TMJ and degenerative disc disease are separate conditions affecting two separate and unrelated parts of the body. The VA examiner concluded that there is no evidence that this Veteran's DDD cervical spine is proximately due to or the result of the TMJ disability. However, private medical evidence from Dr. D.W., M.D. in March 2006 reflects that there was evidence of probable myofascial tightness of the neck and upper trapezius secondary to both the impingement and chronic TMJ problems. Also, private treatment records from Dr. L.A.C., Jr., DDS in May 2014 state that the Veteran complains of neck pain associated with the TMJs. Here, the rationale for secondary service connection is incomplete as it speaks only to causation and not aggravation. Accordingly, as the Veteran has not yet been provided a VA examination that adequately addresses the issue presented, to include fully explained rationale, the Board finds that additional remand is necessary in order to afford the Veteran an adequate examination. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Stegall v. West, 11 Vet. App. 268 (1998). (b) Service connection for headaches The Veteran was afforded VA examinations in May 2016 to address whether the Veteran's headaches were caused or aggravated by his service-connected TMJ disability. The Board finds the May 2016 VA examinations inadequate. The May 2016 VA examiner noted the Veteran had been diagnosed with tension headaches in 2015. However, a review of the medical evidence of record shows complaints of chronic headaches in October 2005 and facial pain of the left and right temple area described as sharp pain that comes and goes in February 2006. The Veteran stated he has had this sharp pain that comes and goes since he was 14 years old. The Veteran's enlistment examination noted "head injury." The VA examiner opined that the Veteran's headaches were less likely than not proximately due to or the result of the Veteran's service-connected TMJ disability. The VA examiner provided that the Veteran was diagnosed with TMJ in the 1990s and per the Veteran's own self report the onset of tension headaches did not begin until 2015. Based on this timeline of onset of symptoms, the VA examiner concluded there was no convincing evidence that this Veteran's tension headaches were "caused by or incurred by his TMJ disorder." The Board notes that the VA examiner failed to portray an adequate history of the Veteran's headaches in the rationale and ignored the Veteran's complaints that his headache symptoms were related to his TMJ pain increasing in severity. In his substantive appeal (via VA Form 9), the Veteran reiterated that his headaches have been present for many years, contrary to the reported medical history detailed by the examiner. Notably, private treatment records from May 2014 reflect the Veteran's complaints of headaches described as sharp along the temporal area that can happen on either side depending on the intensity of pain coming from the TMJs. The Board finds the May 2016 VA medical opinion's rationale for secondary service connection incomplete as it speaks only to causation and not aggravation. Moreover, the Board notes that the Veteran's service treatment records note the Veteran's complaints of headaches. The Veteran has not been provided a VA medical examination addressing direct service connection. Accordingly, as the Veteran has not yet been provided a VA examination that adequately addresses the issues presented, to include fully explained rationale, the Board finds that additional remand is necessary in order to afford the Veteran an adequate examination. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Stegall v. West, 11 Vet. App. 268 (1998). (c) Service connection for muscle spasms The Veteran was afforded a VA examinations in May 2016 to address whether the Veteran's muscle spasms was caused or aggravated by his service-connected TMJ disability. The Board finds the May 2016 VA examinations inadequate. The Veteran was not found to have a diagnosis of neck or cervical spine spasms in treatment records and did not evidence neck or cervical spine spasm upon physical examination. However, the Board notes that private treatment records reflect complaints of neck pain and stiffness of the left and right side when the Veteran moved his head. The VA examiner opinion that the Veteran's cervical muscle spasms was less likely than not proximately due to or the result of the Veteran's service-connected TMJ disability. The VA examiner provided that there was no evidence for neck muscle spasm or cervical spine spasm on his current physical examination. The VA examiner also stated that there is no medical body of literature linking TMJ to the development of neck muscle spasms, finding the TMJ and musculature of the neck represent two separate parts of the body. However, private medical evidence from Dr. D.W., M.D. in March 2006 reflects that there was evidence of probable myofascial tightness of the neck and upper trapezius secondary to both the impingement and chronic TMJ problems. Also, private treatment records from Dr. L.A.C., Jr. DDS in May 2014 state that the Veteran complained of neck pain associated with the TMJs. The Board also notes that the rationale for secondary service connection is incomplete as it speaks only to causation and not aggravation. Accordingly, as the Veteran has not yet been provided a VA examination that adequately addresses the issue presented, to include fully explained rationale, the Board finds that additional remand is necessary in order to afford the Veteran an adequate examination. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Stegall v. West, 11 Vet. App. 268 (1998). (d) Service Connection for peripheral vestibular disorder (claimed as vertigo) The Veteran was afforded a VA examinations in May 2016 to address whether the Veteran's vertigo were caused or aggravated by his service-connected TMJ disability. The Board finds the May 2016 VA examinations inadequate. The May 2016 VA examiner noted the Veteran had been diagnosed with peripheral vestibular disorder in 2013. The VA examiner opined that the Veteran's peripheral vestibular disorder was less likely than not proximately due to or the result of the Veteran's service-connected TMJ disability. The VA examiner provided that there is no medical body of literature linking TMJ to the development of peripheral vertigo. The VA examiner also found that the Veteran was diagnosed with an inner ear condition which was determined to be the etiology of the Veteran's peripheral vertigo. The VA examiner concluded TMJ and peripheral vertigo represent two separate, unrelated conditions affecting separate, unrelated parts of the body. Here, the rationale for secondary service connection is incomplete as it speaks only to causation and not aggravation. Accordingly, as the Veteran has not yet been provided a VA examination that adequately addresses the issue presented, to include fully explained rationale, the Board finds that additional remand is necessary in order to afford the Veteran an adequate examination. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Stegall v. West, 11 Vet. App. 268 (1998). (e) TDIU In addition, the Board finds that the Veteran's TDIU claim is inextricably intertwined with the remanded service connection claims herein and the referred claim of the increased rating for service-connected TMJ, as the resolution of those claims might have bearing upon the claim for a TDIU rating. The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, the Board finds that adjudication of the claim for a TDIU must be deferred. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a new VA examination by an examiner who has not previously examined him with the appropriate expertise to determine the nature and etiology of a cervical spine disability. The examiner is requested to review the claims folder, to include this REMAND. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. Following review of the claims file and in-person examination, the examiner must provide the opinion on the following: (a) Clearly identify all diagnosed cervical spine disabilities. (b) Determine whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any diagnosed cervical spine disability, to include degenerative disc disease and neck spasms, (i) had its onset during the Veteran's active duty service or within one year of service discharge, or (ii) is otherwise etiologically related to his active service. (c) Determine whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's cervical spine disability was caused by his service-connected TMJ disability. (d) Determine whether it is at least as likely as not (i.e., there is at least a 50 percent probability that the Veteran's cervical spine disability was aggravated (permanently worsened beyond the natural progress of the disorder) by his service-connected TMJ disability. *The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. *The VA examiner's attention is drawn to the May 2014 private treatment record from Dr. L.A.C., Jr., DDS detailing the Veteran's complains of neck pain associated with his TMJs. *This opinion must be accompanied by a clear rationale and reconcile prior opinions of record. If the examiner finds that one etiology is more likely over another, such opinion should provide a clear rationale for that finding. 2. Schedule the Veteran for a new VA examination by an examiner who has not previously examined him with the appropriate expertise to determine the nature and etiology of a headache disability. The examiner is requested to review the claims folder, to include this REMAND. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. Following review of the entire claims file and in-person examination, the examiner must provide an opinion on the following: (a) The examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's headache disability is related to or had its onset during his active service. (b) The examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's headache disability was proximately caused by his service-connected TMJ disability. (c) The examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's headache disability has been aggravated (permanently worsened beyond the natural progress) by his service-connected TMJ disability. *The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. *The VA examiner's attention is draw to the private treatment records from Dr. L.A.C., Jr., DDS in May 2014 which reflects the Veteran's complaints of headaches described as sharp along the temporal area that can happen on either side depending on the intensity of pain coming from the TMJs. *This opinion must be accompanied by a clear rationale and reconcile prior opinions of record. If the examiner finds that one etiology is more likely over another, such opinion should provide a clear rationale for that finding. 3. Schedule the Veteran for a new VA examination by an examiner who has not previously examined him with the appropriate expertise to determine the nature and etiology of his peripheral vestibular disorder. The examiner is requested to review the claims folder, to include this REMAND. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail Following review of the claims file and in-person examination, the examiner must provide the opinion on the following: (a) Determine whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's current peripheral vestibular disorder is related to or had its onset during active service. (b) Determine whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's peripheral vestibular disorder was proximately caused by any service-connected disability, to include his TMJ disability. (c) Determine whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's peripheral vestibular disorder has been aggravated (permanently worsened beyond the natural progress) by any service-connected disability, to include his TMJ disability. *The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. *This opinion must be accompanied by a clear rationale and reconcile prior opinions of record. If the examiner finds that one etiology is more likely over another, such opinion should provide a clear rationale for that finding. 4. Review the examination report(s) to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Then, readjudicate the claims remaining on appeal, to include entitlement to a TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case (SSOC) and allow the appropriate time for response. Then, return the case 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. §§ 5109B, 7112 (2012). _________________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).