Citation Nr: 1803840 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-17 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for migraines. 3. Entitlement to service connection for temporomandibular joint dysfunction (TMJ). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from June 2, 1988 to July 27, 1988, and from September 1990 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the St. Petersburg, Florida RO. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record indicates that additional development is required prior to adjudication of the Veteran's claim. Concerning the Veteran's claims for entitlement to service connection for a low back disability and entitlement to service connection for migraines the Veteran was provided a VA examination in November 2010. The Board finds that the November 2010 opinions are inadequate for adjudicating the claims. Although the examiner diagnosed the Veteran with a lumbar spine strain and migraine headaches the opinions that were rendered were speculative. The Board acknowledges that a speculative medical opinion is not per se inadequate. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). A speculative opinion is adequate if the examiner provides an explanation for that determination and indicates whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. Id. In the present case, the examiner did not provide a sufficient explanation and did not indicate whether the inability to render the opinion was based on the need for additional evidence or was based on the limits of medical knowledge. Therefore, the November 2010 VA opinions are inadequate and addendum opinions are necessary. With regard to the Veteran's claim for entitlement to service connection for TMJ, the record indicates that a VA examination was not provided. Generally, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifested during an applicable presumptive period for which the Veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A (d) (2) (2012); 38 C.F.R. § 3.159 (c) (4) (i) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Private treatment records indicate that the Veteran has a current diagnosis of TMJ. Specifically, a November 2008 private treatment record describes the Veteran's musculoskeletal problems and includes TMJ. The Veteran testified at the December 2016 Board hearing that her TMJ is related to teeth she had pulled during her active service. The Veteran's service treatment records contain a November 1996 report of medical history that reflects she had teeth extracted in 1990. Therefore, the Board finds that the Veteran has satisfied the "low" threshold set forth in McLendon. A VA examination is warranted to determine whether the Veteran's current TMJ is etiologically related to her active duty. See McLendon, 20 Vet. App. at 83; 38 C.F.R. § 3.159 (c) (4) (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from June 2011 to the present. All attempts to obtain the records should be documented in the claims file. 2. Return the claims folder to the November 2010 VA examiner or an appropriately qualified examiner if the November 2010 VA examiner is unavailable, to provide an addendum opinion regarding the nature and likely etiology of each identified low back disability, to include lumbar spine strain. Provide a copy of this remand and the claims file to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such examination should be scheduled. The examiner must address the following: * Whether it is at least as likely as not (50 percent or greater probability) that any low back disability, to include, but not limited to, lumbar spine strain, is related to the Veteran's active service. A complete rationale should be provided for any opinion or conclusion expressed. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitation of knowledge in the medical community at large and not those of the particular examiner. 3. Return the claims folder to the November 2010 VA examiner or an appropriately qualified examiner if the November 2010 VA examiner is unavailable, to provide an addendum opinion regarding the nature and likely etiology of the Veteran's migraines. Provide a copy of this remand and the claims file to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such examination should be scheduled. The examiner must address the following: * Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraines are related to her active service. A complete rationale should be provided for any opinion or conclusion expressed. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitation of knowledge in the medical community at large and not those of the particular examiner. 4. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran's TMJ. The claims file and a copy of this remand should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Based on a physical examination of the Veteran, review of the claims file, and with consideration of the Veteran's lay testimony pertaining to in-service and post-service symptoms, the examiner must address the following: * Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's TMJ is related to her active service. A complete rationale should be provided for any opinion or conclusion expressed. 5. After completion of the above, review the expanded record, including evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted. If entitlement to service connection remains denied, furnish the Veteran and her representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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). JOHN J. CROWLEY 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).