Citation Nr: 1803981	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-22 215	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for bruxism and temporomandibular joint dysfunction (TMJ).

2.  Entitlement to service connection for bruxism and TMJ.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Young, Counsel 


INTRODUCTION

The Veteran had active duty service from May 1998 to November 2004.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In October 2016 the Veteran testified at a videoconference hearing before the undersigned; a transcript of the hearing has been associated with the Veteran's record.  At the hearing the Veteran's representative requested and was granted a 30-day abeyance to submit additional evidence.  In November 2016 additional evidence (a report from the Veteran's private dentist) was received along with a waiver of initial agency of original jurisdiction (AOJ) consideration of such evidence.  

The reopened claim is addressed in the REMAND section of this decision.


FINDINGS OF FACT

1.  In an April 2009 rating decision, the RO declined to reopen the claims of service connection for bruxism and TMJ on the basis that there was no new and material evidence submitted since the June 2005 final unappealed rating decision that denied the claims.  

2.  Evidence received after the April 2009 rating decision relate to unestablished facts necessary to substantiate the claims of service connection for bruxism and TMJ and raises a reasonable possibility of substantiating the underlying claims.



CONCLUSIONS OF LAW

1.  The April 2009 rating decision that declined to reopen the service connection claims for bruxism and TMJ is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103 (2017).  

2.  Evidence received since the final unappealed April 2009 rating decision is new and material.  38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C. §7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C. § 5108.  

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Fortuck v. Principi, 17 Vet. App. 173 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).

An April 2009 rating decision declined to reopen the previously denied claims of service connection for bruxism and TMJ on the basis there was no new and material evidence submitted since the unappealed final June 2005 rating decision that denied the claims.  The Veteran was furnished notice of the April 2009 determination and of her appellate rights, and that rating decision became final when she did not appeal that decision or submit new and material evidence within one year following notice.  See 38 U.S.C. § 7105; 38 C.F.R. § 3.156.

Evidence received since the April 2009 rating decision includes the report of a December 2011 VA TMJ examination with a March 2012 addendum, which reported the Veteran has a TMJ disorder with diagnoses of bilateral click with reduction, no pain, complaint of pain and locking, and bruxism, occlusal wear facets, sensitive, within normal limits, pertinent to TMJ.  It was also noted that the Veteran's jaw hurts pertinent to TMJ.  The March 2012 addendum provides a negative nexus opinion with rationale for the Veteran's bruxism and TMJ.  The opinion provider opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  Additionally, a November 2016 report from the Veteran's private dentist noted that clinical examination revealed she had a maximum opening of 44mm with pain on the left TMJ, pain of the left TMJ upon palpation, palpation of the left masseter muscle, left sternocleidomastoid muscle, and left splenius capitus muscle elicited discomfort, was received after the final unappealed April 2009 rating decision.  

The December 2011 VA TMJ examination and the November 2016 private dentist's report suggest that the Veteran has current diagnoses of bruxism and TMJ.  For purposes of reopening, this evidence is deemed credible.  It relates to an unestablished fact necessary to substantiate the claims of service connection for bruxism and TMJ, and raises a reasonable possibility of substantiating those claims (particularly in light of the low threshold standard for reopening endorsed by the United States Court of Appeals for Veteran's Claims (Court) in Shade).  Therefore, the additional evidence received is both new and material, and the claims of service connection for bruxism and TMJ may be reopened.  38 U.S.C. § 5108.

As this claim is being reopened and remanded, any deficiencies in VA's duties to notify and assist the Veteran will be further addressed on remand and need not be discussed in conjunction with the reopening.


ORDER

New and material evidence having been received, the claim for service connection for bruxism and TMJ disorder is reopened.  


REMAND

As noted above, the record does contain a March 2012 negative VA nexus opinion, but it is not clear that the examiner considered the Veteran's reports of her jaw locking and having sensitive teeth at the time of service separation, nor was it considered that since service she still grinds her teeth and her teeth have shifted.  The aforementioned November 2016 private dentist's report also warrants consideration in this regard.  As such, the Board finds that a new VA examination and medical opinion is warranted.

Accordingly, this case is REMANDED for the following action:

1.  Contact the Veteran via a 38 C.F.R. § 3.159(b) notice letter and request that she provide information and (if warranted) signed release forms for any dental or other temporomandibular joint treatment she has received.  Pursuant to 38 C.F.R. § 3.159(c), take all necessary action to obtain records of treatment that the Veteran identifies, if any.

2.  Afford the Veteran a VA dental or similar examination of the jaw, with an examiner who has reviewed the claims file.  The examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that bruxism and TMJ are etiologically related to service.  In reaching this determination, the examiner must consider: 1) the Veteran's reports of her jaw locking and having sensitive teeth at the time of service separation, and of post-service grinding and shifting of teeth; and 2) the November 2016 private dentist's report.  If an alternative diagnosis, or no diagnosis, is rendered, the examiner must so explain.  All opinions must be supported by a rationale in a typewritten report.

3.  Then, the claim must be readjudicated.  If the determination remains unfavorable, the Veteran and her representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board.  

The Veteran has the right to submit additional evidence and argument on this matter.  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).


______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs