Citation Nr: 1806483 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-21 937A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a dental disorder. 2. Entitlement to an initial rating in excess of 30 percent for major depressive disorder (MDD). REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 2001 to October 2005. This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2017, a travel Board hearing was held before the undersigned in Winston-Salem, North Carolina. A transcript of the hearing is associated with the Veteran's claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Regarding the issue of service connection for a dental disorder, the Veteran contends that treatment rendered while he was on active duty caused a dental disorder for which service connection should be established. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "service trauma" for the purpose of VA outpatient treatment "means an injury or wound produced by an external physical force during the service member's performance of military duties" and "excludes the intended result of proper medical treatment." Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010). Review of the Veteran's service dental records shows that he did receive extensive dental treatment in service, including treatment for a chipped tooth (number 7). The Veteran has not been afforded a VA dental examination to ascertain if there are residuals of dental disability that may be related to service. After considering the record, the Board finds that an examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (setting forth the criteria under which VA is required to obtain an examination). Regarding the claim for an initial rating for MDD, during the Board hearing in March 2017, the Veteran testified that his disorder had significantly worsened since a June 2016 incident. His most recent VA mental disorders compensation examination was conducted in January 2014. In light of the Veteran's testimony, it is found that an additional examination is warranted. In addition, during the Board hearing, the Veteran testified that he has been receiving psychotherapy monthly since the most recent treatment reports of record. The records of such treatment should be obtained and associated with the claims folder prior to further appellate consideration. Accordingly, the case is REMANDED for the following action: 1 The AOJ should obtain, for association with the claims folder, copies of any and all records of mental health treatment that the Veteran received since January 2017. 2. The AOJ should arrange for the Veteran to undergo a dental examination to ascertain the current nature and etiology of any dental disorder. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a dental disorder, including residuals of a chip of tooth numbered 7, that may be related to service. The claims folder should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 3. Following association of any additional treatment records with the claims file, the AOJ should arrange for the Veteran to undergo a medical examination to ascertain the current nature and severity of his MDD. The claims file should be made available to the examiner for review in connection with the examination. The examiner is also requested to comment on functional effects on daily activities and employment due to the service-connected MDD. For any psychiatric disorder(s) other than MDD that is(are) identified, the examiner should state what, if any, additional disability is associated with such disability. All opinions should be supported by a written rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Thereafter, the AOJ should readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. They should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review, if in order. The appellant 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). _________________________________________________ BARBARA B. COPELAND 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).