Citation Nr: 18149191 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-37 059 DATE: November 9, 2018 ORDER The petition to reopen the claim of service connection for sleep apnea secondary to the service-connected temporomandibular joint dysfunction with bruxism disability is granted. The petition to reopen the claim of service connection for headaches secondary to the service-connected temporomandibular joint dysfunction with bruxism disability is granted. Service connection for teeth clenching is denied. Service connection for limited range of motion of the jaw is denied. Service connection for fatigue is denied. Service connection for crepitus is denied. Service connection for muscle spasms is denied. Service connection for face and jaw pain is denied. Service connection for jaw muscle and joint pain is denied. REMANDED Service connection for sleep apnea secondary to the temporomandibular joint dysfunction with bruxism disability is remanded. Service connection for headaches secondary to the temporomandibular joint dysfunction with bruxism disability is remanded. FINDINGS OF FACT 1. The Veteran’s claims for service connection for sleep apnea and headaches were denied in a March 2014 rating decision and, as the Veteran did not file new and material evidence or a notice of disagreement within one year, the decision became final. 2. New and material evidence regarding the sleep apnea and headaches claims has been received since the March 2014 rating decision. 3. The Veteran is already service-connected for teeth clenching and limited jaw range of motion. 4. Service connection is unavailable for face and jaw pain, jaw muscle and joint pain, muscle spasms, and crepitus because they are symptoms, rather than disabilities, and are contemplated by the 40 percent disability rating for the service-connected TMJ dysfunction with bruxism. CONCLUSIONS OF LAW 1. The March 2014 rating decision is final. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria to reopen the claim of service connection for sleep apnea secondary to the service-connected temporomandibular joint dysfunction with bruxism disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to reopen the claim of service connection for headaches secondary to the service-connected temporomandibular joint dysfunction with bruxism disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for teeth clenching have not been met. 38 U.S.C. §§ 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for limited jaw range of motion have not been met. 38 U.S.C. §§ 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for service connection for fatigue have not been met. 38 U.S.C. §§ 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 7. The criteria for service connection for crepitus have not been met. 38 U.S.C. §§ 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 8. The criteria for service connection for muscle spasms have not been met. 38 U.S.C. §§ 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 9. The criteria for service connection for face and jaw pain have not been met. 38 U.S.C. §§ 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 10. The criteria for service connection for jaw muscle and joint pain have not been met. 38 U.S.C. §§ 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is currently rated at 40 percent for temporomandibular joint (TMJ) dysfunction with bruxism, effective March 27, 2013. The following claims are for disorders and symptoms associated with this disability. 1. The petitions to reopen service connection for sleep apnea and headaches secondary to the service-connected TMJ dysfunction with bruxism are granted. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.160 (d), 20.302(a), 20.1100, 20.1103, 20.1104. If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. See Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156. 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. See id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; 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, 117-120 (2010). The RO denied service connection for sleep apnea and headaches in a March 2014 rating decision. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At that time, the sleep apnea claim was denied because the Veteran’s TMJ dysfunction was not yet service-connected and the headaches disorder claim was denied because there was no evidence it began in or was otherwise related to service. The Veteran petitioned to reopen his claims of service connection for sleep apnea and headaches in October 2014. His TMJ dysfunction was service-connected in September 2015 and, during his TMJ dysfunction examination, the VA examiner reported “frequent headaches” as related to his TMJ dysfunction and bruxism diagnoses. The Board finds that this evidence is new and material to both claims, and the petitions to reopen are granted to this extent only. 2. The claims for service connection for teeth clenching and limited jaw motion are denied. The Veteran seeks service connection for teeth clenching and limited jaw motion. The Board finds, however, that these symptoms have already been service-connected as part of his TMJ dysfunction with bruxism disability. In July 2015, the Veteran underwent a VA TMJ examination and was diagnosed with bruxism and bruxism-induced TMJ. He reported experiencing limited movement due to pain and morning flare-ups that produced limited motion and pain. Initial range of motion testing showed inter-incisal distance to 37 millimeters, with right lateral excursion to 8 millimeters and left lateral excursion to 10 millimeters. There was objective evidence of localized tenderness as well as crepitus, popping, and clicking with pain that limited range of motion bilaterally. The examiner determined that pain, fatigue, and weakness would significantly limit functional ability with repeated used over time and estimated that repeated use would limit inter-incisal distance to 35 millimeters, right lateral excursion to 7 millimeters, and left lateral excursion to 9 millimeters. The examiner further determined that, while the Veteran was not being examined during a flare-up, pain and fatigue would significantly limit functional ability during flare-ups and estimated that flare-ups would limit inter-incisal distance to 3-4 millimeters, right lateral excursion to 1-2 millimeters, and left lateral excursion to 1-2 millimeters. Imaging studies were conducted but there was no evidence of arthritis or other pertinent findings. In September 2015, service connection was granted for TMJ dysfunction with bruxism. The Board notes that bruxism is defined as “involuntary, nonfunctional, rhythmic or spasmodic gnashing, grinding, and clenching of teeth (not including chewing movements of the mandible), usually during sleep, sometimes leading to occlusal trauma.” Dorland’s Illustrated Medical Dictionary 260 (31st ed. 2007). Thus, the Veteran’s teeth clenching is already service-connected. Moreover, in June 2016, the disability rating was increased to 40 percent based on the extent to which flare-ups impacted functional ability and limited range of motion. Service connection for limitation of motion is therefore unavailable because it is also service-connected as part of his TMJ dysfunction with bruxism disability. Importantly, neither the medical evidence nor the lay evidence demonstrates a separate basis upon which the claims of service connection can be granted. Accordingly, the claims are denied. 3. The claims for service connection for fatigue, crepitus, muscle spasms, face and jaw pain, and jaw muscle and joint pain are denied. The Veteran seeks service connection for fatigue, crepitus, muscle spasms, face and jaw pain, and jaw muscle and joint pain associated with his service-connected TMJ dysfunction with bruxism disorder. The Board finds, however, that these are symptoms of his already service-connected TMJ condition, rather than separate disabilities, and have been contemplated in the disability rating. The findings from the VA examination in July 2015 are described above. After review of the evidence, the Board finds that the Veteran’s TMJ dysfunction with bruxism is rated at 40 percent based on limited jaw range of motion due to symptoms of fatigue, pain, and crepitus. The evidence does not show that these symptoms are disorders distinct from his service-connected TMJ dysfunction with bruxism; rather, his TMJ rating is specifically based upon the functional impairment caused by these symptoms. Regarding the Veteran’s claim for muscle spasms, the medical evidence does not document muscle spasms; nevertheless, they too are merely a symptom, rather than a distinct disability, and the extent to which the Veteran’s TMJ symptoms impair functional ability and limit range of motion has already been contemplated by his current disability rating. Accordingly, service connection is unavailable for fatigue, face and jaw pain, jaw muscle and joint pain, muscle spasms, and crepitus because they are symptoms of the service-connected TMJ dysfunction with bruxism, rather than distinct disorders, and the functional impairment caused by these symptoms has been contemplated by the current disability rating. REASONS FOR REMAND The claims for service connection for sleep apnea and headaches secondary to the service connection TMJ dysfunction with bruxism are remanded. The Veteran was afforded sleep apnea and headaches examinations in July 2015, and the VA examiner opined that neither the Veteran’s sleep apnea nor his headaches were “proximately due to or the result of” the Veteran’s service-connected TMJ dysfunction with bruxism. The examiner, however, did not address the theory of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Accordingly, a remand is necessary for addendum medical opinions. The matters are REMANDED for the following action: 1. Obtain the Veteran’s San Antonio Veterans Health Care system records from September 2016 to the present. 2. Obtain an addendum opinion from the July 2015 VA examiner if available, or another appropriate examiner if not, regarding whether the Veteran’s obstructive sleep apnea disorder is at least as likely as not aggravated beyond its natural progression by the service-connected TMJ dysfunction with bruxism. 3. Obtain an addendum opinion from the July 2015 VA examiner if available, or another appropriate examiner if not, regarding whether the Veteran’s headaches disorder is at least as likely as not aggravated beyond its natural progression by the service-connected TMJ dysfunction with bruxism. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel