Citation Nr: 18141474 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 12-21 009A DATE: October 10, 2018 REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a head injury, to include traumatic brain injury, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for residuals of dental trauma, to include damage to tooth number 8, is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a headache disorder is remanded. Entitlement to a rating higher than 20 percent for residuals of a right fifth metacarpal fracture, resolved status post-surgery. REASONS FOR REMAND The Veteran served on active duty from June 1971 to June 1974. The Veteran had requested a Board hearing, but withdrew the request in a July 2018 statement. In an August 2018 Informal Hearing Presentation (IHP) the Veteran’s representative argued that the Veteran’s claim for an increased rating for residuals of a fracture of the right fifth metacarpal had remained pending since January 2003. In this regard, the Board notes that the Veteran filed a claim for a rating higher than 10 percent for residuals of a fracture of the right fifth metacarpal on March 11, 2003. The claim was denied in September 2003 and following a timely notice of disagreement (NOD) the Veteran perfected a timely appeal of the claim. In September 2007 the Board remanded the claim for additional development. In a February 2009 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 20 percent under Diagnostic Codes 5227-7804, effective September 14, 2008. The Veteran disagreed with the effective date of the rating assigned. In June 2010 the AOJ issued another rating decision granting an earlier effective date of January 9, 2003 for the increased rating of 20 percent. Although the Veteran did not express disagreement with the AOJ’s rating actions post-remand, the grant of an increased rating does not automatically remove Board jurisdiction. See AB v. Brown, 6 Vet. App. 35 (1993). Rather the Veteran is presumed to be seeking the maximum allowable benefit, as the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal and has been listed on the title page as part of the current appeal. Id. In the August 2018 IHP the Veteran’s representative also raised claims for entitlement to service connection for loss of teeth other than the service-connected tooth number 8, as secondary to in-service dental trauma. Additionally, the representative raised a claim for compensation for a dental disability pursuant to 38 U.S.C. § 1151. These claims have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over the claims, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). A November 2017 rating decision granted a separate noncompensable rating for a residual scar of the right fifth metacarpal. The Board notes that the Veteran has filed a NOD at the RO concerning the claim for a compensable rating for a residual scar of the right fifth metacarpal. Such appeal is contained in the VACOLS appeals tracking system as an active appeal at the Regional Office (RO). While the Board is cognizant of the Court’s decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the RO’s action on that appeal. As such, no action will be taken by the Board at this time, and the claim for a compensable rating for a residual scar of the right fifth metacarpal presently before the RO will be the subject of a later Board decision, if ultimately necessary. The motion to revise or reverse the September 12, 2007 Board decision due to due to clear and unmistakable error is addressed in a separate decision. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a head injury, to include traumatic brain injury, is remanded. The Veteran’s claim for an injury to the forehead was originally denied in October 1979. The claim was again denied in an unappealed May 1993 rating decision. An April 2010 rating decision declined to reopen the claim for entitlement to service connection for a head injury. In correspondence received in May 2010 the Veteran stated that he was contesting the RO’s denial of his claim for a head injury. The Board finds this correspondence to be a (timely) NOD with the April 2010 rating decision, but to date, he has not been provided a statement of the case (SOC). As such, on remand, an SOC must be sent to the Veteran on this issue. See Manlicon, 12 Vet. App. at 240-41 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran claims that he developed an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to service, to include conceded in-service dental trauma. In the alternative, he has claimed that his psychiatric disorder is caused or aggravated by a service-connected disability. The service treatment records contain no complaints, findings or diagnosis consistent with a psychiatric disorder. After service, records dated during the 1990’s showed treatment for depression and suicidal ideation associated with substance abuse. Subsequent treatment records reflect diagnoses consistent with an acquired psychiatric disorder, including schizophrenia, major depressive disorder and bipolar disorder. The Veteran underwent a VA psychiatric examination in November 2017. He reported a history of being struck in the face and head with a tow bar during military service, with damage to a tooth and a knot forming on the head following the injury. He associated his acquired psychiatric disorder with the claimed head trauma because, in pertinent part, he was teased by others due to his appearance following dental trauma. The examiner noted a diagnosis of schizoaffective disorder based on recent mental health records as it was not possible to complete a proper diagnostic evaluation. The examiner found that while the Veteran claimed that his mental health symptoms were precipitated or worsened by an in-service head injury, which was plausible, there was no record of head injury in service. As such, the examiner opined that given the absence of evidence of treatment for head or facial injuries during military service, it was less likely than not that the Veteran’s acquired psychiatric disorder was caused by or aggravated by a history of head injury during military service. The Board notes, that while the service records indeed fail to document an injury to the head as described by the Veteran, or findings consistent with a psychiatric disorder, VA has conceded in-service dental trauma. Given that the examiner’s opinion suggests a possible nexus between the Veteran’s psychiatric symptoms and the conceded in-service dental trauma, the Board finds that additional examination is required to determine whether the Veteran’s acquired psychiatric disorder was caused or aggravated by in-service dental trauma. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for residuals of in-service dental trauma, to include damage to tooth number 8, is remanded. The Veteran claims that he is entitled to compensation for a dental disability due to bone loss caused by in-service dental trauma, to include damage to tooth number 8. Under VA regulations, compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible; bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment and cannot be considered for compensation purposes. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease can be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161, but not for purposes of compensation. 38 C.F.R.§ 3.381 (a). On VA examination in August 2003 a VA examiner noted that tooth number 8 was injured when a piece of aircraft machinery hit teeth numbers 8 and 9. Tooth number 9 was saved and number 8 had to be extracted. After discharge from service, tooth number 8 was rep1aced with a fixed bridge from teeth numbers 7 to 9. Thereafter tooth number 7 had to be extracted and he had a bridge from tooth number 6 to 9. The examiner also noted numerous missing teeth, numbers 3, 5, 7, 8, 12, 14, 16, 17, 29, 30, 31, and 32. The examiner reported moderate bone loss and need for upper and lower partials. However, the examiner did not state whether the bone loss was related to the service-connected dental trauma. As such, without more information as to the nature of the bone loss, the Board is unable to determine whether the Veteran’s tooth loss is compensable. Here, an examination is necessary to determine whether the Veteran suffers from a dental condition that is compensable by VA and whether any such condition is linked to his active duty service. McLendon, 20 Vet. App. At 83. 4. Entitlement to service connection for a gastrointestinal is remanded. 5. Entitlement to service connection for a right knee disability is remanded. 6. Entitlement to service connection for a headache disorder is remanded. 7. Entitlement to a rating higher than 20 percent for residuals of a right fifth metacarpal fracture, resolved status post-surgery, is remanded. Concerning the remaining claims for service connection for a gastrointestinal disorder, a right knee disorder and a headache disorder, as well as the claim for an increased rating for residuals of a right fifth metacarpal fracture, the Board finds that a remand is necessary in order to obtain outstanding Social Security Administration (SSA) records. In the August 2018 IHP the Veteran’s representative reported that the Veteran is in receipt of disability benefits from SSA and that the records should be obtained as relevant to the appeal. As the SSA’s decision and the records upon which the agency based its determination may be relevant to VA’s adjudication of the Veteran’s pending claims, VA is obliged to attempt to obtain and consider those records. 38 U.S.C. § 5103A (c)(3); 38 C.F.R. § 3.159 (c)(2). As such, a remand is necessary in order to obtain all medical records concerning the Veteran’s claim for SSA disability benefits. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by the SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from the SSA). Finally, concerning the claim for service connection for a gastrointestinal disorder, in the August 2018 IHP the Veteran’s representative asserted service connection for the condition as secondary to the psychiatric disability being remanded for additional development. This claim is therefore inextricably intertwined with the claim for an acquired psychiatric disorder, and its adjudication must be deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Issue a SOC for the application to reopen a claim of entitlement to service connection for residuals of a head injury. Only if the Veteran perfects an appeal should the claim be certified to the Board. 2. Contact the Social Security Administration for the purpose of obtaining all additional medical records relied upon and any final decision made in conjunction with the Veteran’s claim disability benefits. All such available documents should be associated with the claims folder. Any negative responses must be documented. 3. Obtain updated VA treatment records. 4. Schedule the Veteran for a VA examination with a psychologist or psychiatrist to ascertain whether the Veteran has an acquired psychiatric disorder that is due to service or a service-connected disability. The examiner should review the claims file and should note that review in the examination report. The examiner should provide the following: a) Identify all psychiatric disorders, to include PTSD. The examiner should specifically determine if the Veteran meets the diagnostic criteria for PTSD. If the Veteran does not meet the criteria for PTSD, the examiner should explicitly discuss which criteria for diagnosis are missing (under either DSM-IV or DSM-V criteria). If a diagnosis of PTSD is warranted, the examiner should specify whether the diagnosis of PTSD is due to any alleged in service stressor, to include conceded in-service dental trauma. The examiner is asked to consider whether the conceded dental trauma was sufficient to produce PTSD (under either DSM-IV or DSM-V criteria). b) For any currently diagnosed psychiatric disorder, other than PTSD, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each current psychiatric disorder is related to service, including conceded dental trauma, or that any psychosis developed within one year of the Veteran’s discharge from service in June 1974. c) For each psychiatric disorder found offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is caused or aggravated (made permanently worse beyond the natural progression of the disease) by a service-connected disability. If a psychiatric disability has been aggravated by a service connected disability, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of disability. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In doing so, the examiner must consider the service treatment records, including a June 1974 report of medical history wherein the Veteran endorsed a history of head injury, but denied depression, excessive worry, or nervous trouble of any sort, as well as the Veteran’s statements regarding continuity of symptomatology. 5. Schedule the Veteran for a VA dental examination. The examiner is requested to review all pertinent records associated with the claims file. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a dental condition manifested by bone loss due to trauma or disease (as opposed to the alveolar process/ periodontal disease) that had its onset during, or is otherwise related to, active military service, to include conceded in-service dental trauma. The examiner should comment on the Veteran’s service-treatment records, which noted loss of tooth number 8 on separation from service, as well as post-service dental records since 2002 that document treatment for periodontal disease. All opinions reached should include a thoroughly explained rationale. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs